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May 17, 2010

The political and PR benefits for SCOTUS (and others) from Comstock and Graham coming down together

Anyone who thinks the Justices of the Supreme Court are not attuned to issues of politics and public relations needs to explain to me why the anti-sex-offender ruling in Comstock just happened to be handed down on the same day as the pro-defendant ruling in Graham.  For a host of reasons, I suspect the Justices made a conscious effort to release these opinions together (and, to quote a famous Seinfeld episode, "Not that there's anything wrong with that!"). I am not sure there is any reason to lament this PR strategic decision).  Consider how the Wall Street Journal announced today's SCOTUS work via my e-mail in-box as a "news alert":

The Supreme Court said the U.S. can keep "sexually dangerous" prisoners in custody past the completion of their sentences, overruling arguments that only states hold such power.  The ruling was 7-2, with Justices Antonin Scalia and Clarence Thomas in dissent.

In a separate case, the court ruled 5-4 that teenagers may not be locked up for life with no chance of parole if they haven't killed anyone. (Correction: A previous alert said the Supreme Court ruled 6-3 on the juvenile-parole case.)

For those who does not follow the Supreme Court and/or sentencing issues closely, I suspect the first reaction to this breaking "news alert" was "seems like the Supreme Court is being pretty sensible."  Thanks to Comstock coming down with Graham, we learn that "sexually dangerous" prisoners can be kept locked up before we learn that teenagers cannot be "locked up for life with no chance of parole if they haven't killed anyone." 

For those especially eager to reflect on the Justices' as PR and political strategists, one might also focus on the fact that the juve who committed a sexual offense, Joe Sullivan, got his case DIGed today.  Thus, the Justices found a way not only to make their landmark Eighth Amendment ruling the "second" SCOTUS story of the day, they also made sure that individuals (and legislators) most focused on how we deal with sex offenders paid attention principally to the pro-government ruling in Comstock.

May 17, 2010 at 12:38 PM | Permalink


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Doug. I certainly agree with your instincts that this wasn't coincidental. That was my reaction too. However, I am surprised that as a law professor you would think there is nothing wrong with that. A democracy requires a full and fair hearing for all arguments both pro and con. That's the essence of a trial too. Yet when issues are conflated as a PR move you are comfortable with that? I think that's sad. The Court should not be acting as an advocate; in fact, such PR moves display the reality that the SC is not a neutral decision making body but an anti-democratic body whose time has long since passed as serving any valid constitutional function.

These rulings don't surprise me because all they really say is that the Court likes teenagers and doesn't like sexual diversity. That's hardly a surprising result, even if I think it's the wrong one.

Posted by: Daniel | May 17, 2010 2:08:56 PM

It is unclear to me, Daniel, why you think the Court should not try to minimize the political backlash based in the timing of the release of its rulings.

ndeed, the fact that today is the 56th anniversay of the decision in Brown v. Board serves as a reminder that the Court has long been attentive to the polical universe in which it is situated. As I understand the history, the 9-0 outcome in Brown was engineered by CJ Warren in an effort to mute political backlash. And, as the next decade shows, that outcome itself was not sufficient.

I think it is a great/hard question whether the Justices who wanted to dissent in Brown should have given in to CJ Warren's political pitch for a unanimous ruling. But here I am not discussing the issue of what is decided, only the issue of when these decisions are released. And given that few attack the Justices for being so willing/eager to shape their opinion timing decisions around their summer travel schedules, I see it as hard to assail the decision to release opinions in pairs that might help the public fully appreciate that this is a very moderate court despite the fact that nearly all the Justices have been accused of being radicals at some point because it served soem group's political interest to prevent a "full and fair hearing" of the reality of the work the Court does.

Posted by: Doug B. | May 17, 2010 2:22:48 PM

Personally i think it shows what a bunch of criminal NAZI'S our govt has become. This CRIMINAL action puts our supreme court and govt right up there with Adolph Hitler, Stalin, and Mao! As far as i'm concerned these individuals and their families have ever LEGAL and MORAL right to use whatever means necessary upto and INCLUDING lethal force to free themselves or their family members from this UNLAWFUL inprisonment!

I'm sorry but you can't LEGALLY say someone is sane! have a trial! a conviction! a COMPLETED criminal sentence THEN decide they are crazy!

Posted by: rodsmith | May 17, 2010 2:35:30 PM

Agree with Rod, there should be no way to deny the freedom of someone who has completed their sentence.. to decide someone is still dangerous afterward, without looking at the facts, is the highest in hypocrisy. Committing people to institutions and denying them a chance to be reformed is a violation of a legal contract between the state and the punished individual, particularly for plea agreements. I wonder if the argument against was delivered effectively enough in Comstock? One thing is for certain, I knew how Scalia was going to rule on this.. I just thought more of the justices would have the capacity for abstract thought on this. It's about individual rights being trampled on in knee-jerk reaction.. fear is controlling the law, not reason. Media fed hysteria is being stacked on top of stupidity, making a hybrid set of illegal laws that not only punish after the fact, but also are nothing more than political posturing to look tough on crime.

This ruling is the order to fill the trains and send the undesirables to their concentration camps. Hitler would be proud - a scapegoat to blame, a dog to kick, a distraction from the real problems in our country.

Posted by: tbucket | May 17, 2010 3:21:12 PM

Speaking of political leanings, I find it very amusing (and not at all coincidental) that while the Wall Street Journal's announcement led with the pro-government Comstock decision and then threw in the Graham ruling after, the New York Times website currently has as its top headline "Justices Bar Life Terms for Youths Who Haven’t Killed" with the note "Supreme Court Upholds Law on Sex Offenders" in tiny font below.

Posted by: Steve K. | May 17, 2010 3:33:43 PM

rodsmith, I don't think the court ruled on civil commitment as applied to each individual in Comstock. If I understand it, it was limited to if Congress has the power to civilly commit.

The difference is that, for example, either someone has, say, the bubonic plague and should be quarantined or they don't. This question is simple scientific yes or no fact. While I agree the reference to Hitler is not so far fetched as some could conclude under Goodwin's law (since Hitler did begin with the icky pervs) the diagnostic tools used to claim dangerousness, especially actuarial tools, are highly suspect and still open to interpretation.

So a literal revolution might be premature.

As usual, what gets to me is the media-based premises of the laws, which the court has no control over. Take the John Gardner case (search of latimes.com), which is inspiring a brand new LWOP law based on an outlier.

The premise is that the only problem, and therefore the only solution, was not tough enough laws. A particularly interesting and moving story is this one: Families of John Gardner's murder victims tell him he should 'burn in hell' .

The families would not be human if they were not torn and outraged. Who wouldn't be? And yet not all familes jump on the tougher laws bandwagon. While reading the quotes from the victim impact statements, a passing thought was that maybe he should be in a bullet proof enclosure so the families could safely shoot him. On further reading, I realized there are two good reasons for thinking that: 1. Their outrage, and 2. to prevent passive-aggressive politics aimed at those who did not kill and are not a John Gardner. Later paragraphs give us permission to think critically about the new Chealsea's Law:

"Superior Court judges have required court hearings before releasing search warrants, normally a routine event. The San Diego County Sheriff’s Department, Escondido Police Department and county medical examiner have all declined to release documents about their investigation, the arrest of Gardner and the autopsies done on the victims.

"Dist. Atty. Bonnie Dumanis has asked officials not to discuss the case with reporters. Such official silence has left unanswered the questions about how diligently the Escondido police searched for Dubois and what considerations led Dumanis to decide to accept a plea bargain.

"Before Dumanis’ request to be silent, Escondido police told the North County Times that they had had several contacts with Gardner before and after Dubois' appearance and apparently knew he was a sex offender but did not consider him a suspect."

Maybe lack of a tough enough law was not the only problem. Maybe the authorities had ample opportunities to prevent the murders. Maybe the authorities are blaming the law when there is much they could have done. Maybe the prison guard union's victims' rights group swooping down is helping a cover-up. Maybe not.

One thing is certain. All the politics is beyond the court's control. Vote with your feet, lol.

Posted by: George | May 17, 2010 4:44:50 PM

Rod and Tbucket...please, let's return to reality for a second. Yes, the Comstock ruling is extremely disturbing, I'll grant you that.

But akin to Hitler, Stalin, or Mao? I don't even think an enumeration of the differences between the cases is needed--but just for kicks, I'll offer what I believe are two pretty important ones:

(1) sex offenders are confined after having committed a sex offense; Hitler, Stalin and Mao killed people despite their having committed no offense.

(2) Hitler's body count (the lowest of the three): 12 million; sex offenders that will be killed as a result of the Supreme Court's ruling: 0.

Posted by: Res ipsa | May 17, 2010 4:46:42 PM

Right now maybe. Don't forget that not allowing people to return to their lives after they paid for their crime could be detrimental to their health, or have you not been keeping up on people murdering neighbors for being sex offenders or suspect sex offenders? Someone posted a link a few pages back on a guy who was not even a Sex Offender getting beat to death .. mistaken identity. I say the Supreme Court had a chance to say on Comstock that it was unconstitutional,further punishment, and let him begin the process to get out of the system instead of being a target in the system. This ruling very well could endanger lives, you are just too short sighted to see it. This sets a precedent that says additional punishment without further crime is okay. You are not concerned about that? Anyhow, it's fairly cushy when it does not effect you, try living in the shoes of someone this will hurt (or their family!) who never did anything more wrong and may be a target, even in jail. For them, this is a step closer to a concentration camp,its definitely not a step closer to redemption.

Posted by: tbucket | May 17, 2010 5:52:04 PM

Can I ask, tbucket, do you actually have a relative on a sex offender registry? I do--and out of respect for his privacy (whatever little he is given), I will not say exactly what his relation is to me--hopefully anonymity-upon-anonymity is enough in this case. What I will say is that his "crime" is not one deserving of his branding.

Your preemptive snarkiness aside, I do see the effects that registry laws have upon people--and at least one of whom I know to be a decent, good person whose "criminal" act was completely consensual, wand the charge was brought against the "victim's" wishes. It is not simply a theoretical question to me.

Now as to your complete misrepresentation of my position: "Yes, the Comstock ruling is extremely disturbing." I thought this statement of mine would alleviate any misperception that I had no "concern" about the ruling--but apparently not. So this time, I'll make it really explicit: yes, the thought of further punishment for uncharged conduct is disturbing to me. You and I agree on that one. The Court should grow a pair next time.

But as problematic as Comstock may be, I find it insulting to put it in the same league as the mass murder of 12 million people over a course of four years (or over 30 million for each of Stalin and Mao). The that-sounds-like-something-Hitler-did is as ineffective as it is tiring; it is hyperbolic rhetoric that makes a mockery out of otherwise good arguments. And the fact that you can only cite a handful of examples of deaths due to admittedly "mistaken identity" only proves how far afield Congress's misguided law is from Auschwitz.

Posted by: Res ipsa | May 17, 2010 6:34:18 PM

I entirely agree with Res ipsa. Comstock is a disturbing opinion and quite wrong, IMO. That being said, it's quite offensive (and ineffective) to compare it to Hitler or Stalin's conduct.

Regarding the subject of this post, I absolutely do not think it was coincidence that these opinions were issued together. And whether that's a good thing depends on the specific reasoning behind the non-coincidence. Professor Berman asserts it was just a PR move to prevent a backlash (presumably to the Graham opinion). This is the belief I subscribe to, and there is nothing wrong with it. Daniel, however, suggests that doing so caused the Court to not be a "neutral decision making body." In other words (and correct me if I'm wrong), Daniel seem to think the outcome of one (or both) case was altered in order to obtain the PR benefit; one (or both) case did not receive a "full and fair hearing." If that is true, then of course I don’t believe that’s okay. But I doubt that's true. As Prof. Berman said, the timing of when these decisions are released did not impact what was decided.

Posted by: DEJ | May 17, 2010 7:07:37 PM

tbucket: "Don't forget that not allowing people to return to their lives after they paid for their crime could be detrimental to their health"

me: coming soon, a prosecutor arguing that we must "civilly commit" icky pervs for their own protection :P

ginny :)

Posted by: virginia | May 17, 2010 7:50:28 PM

hmm let's take em in order!

"Rod and Tbucket...please, let's return to reality for a second. Yes, the Comstock ruling is extremely disturbing, I'll grant you that.

But akin to Hitler, Stalin, or Mao? I don't even think an enumeration of the differences between the cases is needed--but just for kicks, I'll offer what I believe are two pretty important ones:

(1) sex offenders are confined after having committed a sex offense; Hitler, Stalin and Mao killed people despite their having committed no offense."

Wanna bet! they are crooked politicians out to make a name for themselves no matter who got hurt or killed.

"(2) Hitler's body count (the lowest of the three): 12 million; sex offenders that will be killed as a result of the Supreme Court's ruling: 0."

Again wrong the numbers i've seen put the number of DEAD AMERICAN CITIZENS who had the misfortune of being EX sex offenders in the 100's if not 1,000's if the TRUTH would be told about their deaths thanks to the CRIMINAL rulings by this court and the ILLEGAL laws passed by the criminals in the assorted lvl's of american govt that have turned them into targets.

Posted by: rodsmith | May 17, 2010 8:31:33 PM

no george!

"rodsmith, I don't think the court ruled on civil commitment as applied to each individual in Comstock. If I understand it, it was limited to if Congress has the power to civilly commit."

this was not what it was about. the us gov has had the power for about 70 years to civily commit a dangerous individual. This was abut ILEGALLY extending prison sentences for those who had finished their LEGAL COURT ORDERED SENTENCE.

sorry close to 100 years of prior rulings say if you think someone is dangerous or has a mental problem. you civil cmit t hem. NOT have a trial, a sentence ...have them SERVE that sentence then LOCK EM UP AS NUTS!

and here they aren't even bothering to have a hearing or any proof or even any crime in some of the cases.

Posted by: rodsmith | May 17, 2010 8:35:03 PM

hi DEJ loved this!

"I entirely agree with Res ipsa. Comstock is a disturbing opinion and quite wrong, IMO. That being said, it's quite offensive (and ineffective) to compare it to Hitler or Stalin's conduct."

You found it offensive. guess that means that old saying is still good! THE TRUTH HURTS!

Posted by: rodsmith | May 17, 2010 8:36:43 PM

But there is a comparison to Hitler.

Paragraph 175 (highly recommended documentary that reveals Hitler started with the pervs who didn't have any political capital)

"Between 1933 and 1945, according to Nazi documents, approximately 100,000 men were arrested for homosexuality. Roughly half were sentenced to prison and approximately 10,000 to 15,000 were sent to concentration camps. The death rate of homosexual prisoners in the camps is estimated to be as high as sixty percent (among the highest of non-Jewish prisoners), so that by 1945 only about 4,000 survived."

Paragraph 175
From Wikipedia, the free encyclopedia
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For the film Paragraph 175, see Paragraph 175 (film).

"Paragraph 175 (known formally as §175 StGB; also known as Section 175 in English) was a provision of the German Criminal Code from 15 May 1871 to 10 March 1994. It made homosexual acts between males a crime, and in early revisions the provision also criminalized bestiality.

"The statute was amended several times. The Nazis broadened the law in 1935; in the prosecutions that followed, thousands died in concentration camps. East Germany reverted to the old version of the law in 1950, limited its scope to sex with youths under 18 in 1968, and abolished it entirely in 1988. West Germany retained the Nazi-era statute until 1969, when it was limited to "qualified cases"; it was further attenuated in 1973, and finally revoked entirely in 1994 after German reunification."

While it is true, of course, that not nearly that many have been murdered here in the states, yet, that doesn't mean no one has. Is someone less dead because the government didn't kill them? Common sense tells us these types of murders occurred in Germany before the concentration camps opened. So maybe the Nazis were just being nice and saving lives.

rodsmith, you changed my mind. It is ex post facto and if the government thought treatment was required, it should be offered it in prison, not after. At least then the release date might be possible to attain.

Of course, the bigger picture is that the Feds and the states really are unlimited now on who can and should be civilly committed. Bet gang members are next, and drunk drivers, maybe drug dealers. Who else is really, really evil?

Posted by: George | May 17, 2010 9:12:08 PM

Doug. "It is unclear to me, Daniel, why you think the Court should not try to minimize the political backlash based in the timing of the release of its rulings. "

Because there is a difference between "political" is a poly sci sense of the word and "political" in a vulgar sense of the word. The court is a political institution in the technical sense of that term; its members are representatives of the polis. But it is not the legislature and when the court is seen using its power in a manipulative sense it loses whatever moral authority and whatever respect it deserves. In the poly sci sense of the word, if the court is going act just like the legislature and its members act just like other scheming politicians then the SC is politically redundant and should be abolished. It is precisely because the court is above politics in the vulgar sense of the word that it is capable of commanding respect. It behaving the way it did the court loses respect of the public.

Posted by: Daniel | May 17, 2010 11:43:23 PM

I find it very strange that none of the news stories on Comstock bothers to note that these particular defendants were not mere possessor/receivers of child pornography. According to the Govt's argument: "For example, it is a matter of public record that Comstock had a conviction for taking aggravated indecent liberties with a child; Math erly had been convicted of traveling in interstate commerce to engage in a sexual act with a minor; Vigil had been convicted of sexual abuse of a minor; and Revland had been convicted of indecent exposure. At the time of certification, the government also had additional information about each respondent that was not reflected in prior convictions but could be used to establish his history of sexually violent conduct or child molestation."

I find this ommission disturbing because it does nothing to separate the clear lines between possession/receipt and actual abuse or other clearly dangerous behavior. Of course, possession and receipt are anti-social criminal acts too but alone they far from being sexually violent behavior.

Posted by: Tues | May 18, 2010 12:12:47 AM

George--Maybe I missed this, but were some of the Comstock defendants imprisoned for being gay men? If not, then I'm not quite following the Hitler comparison.

DEJ/others--You did notice that the opinion was about the federal government's powers under the Necessary and Proper Clause, right? I suspect what you find "disturbing" and "wrong" about the opinion was the theory the court had already approved in Kansas v. Hendricks and the like. That's fine, but it strikes me as kind of weird to have a whole discussion/rant about the opinion without acknowledging what it actually decided.

Posted by: Jay | May 18, 2010 2:45:03 AM

not really jay i also thik the state law the supreme court allowed was ALSO illegal. Sorry i dont' care how you say in in legal mobo jumbo.

YOU CANT' lock people up after a legal court ordered sentence is finsihed becasue you have decided NOW that the sentence is finished they are nuts. BUT they werent' nuts before it finished.

Makes you kind of under if it's NOT PRISON making them nuts!

Posted by: rodsmith | May 18, 2010 3:11:05 AM

It's troubling to think Supreme Court justices tremble at the specter of law and order demagogues just like the two-bit pols in the less-lofty branches.

I mean, did they really need to sneak up on a ruling that guardedly provides a modicum of hope to imprisoned youngsters? If so, then the court is a good deal less supreme than it purports to be.

As for ferreting out a way to further punish the punished, just another wide swath cut through the law in pursuit of a devil we love to hate.

Posted by: John K | May 18, 2010 10:09:25 AM

I'm sorry, but civilly confining someone who has already paid for a crime is pretty darn close to a concentration camp. (And thus, the Nazi comparison is valid) Why? 1)They cannot attain a healthy mental or physical standing while incarcerated. 2)They have no recourse for getting out of imprisonment, and laws keep changing faster than they can be appealed, basically guaranteeing that some people who committed low-level sex offenses will be listed as bad as the rapist next to them on the list. 3) Prisoners will be and have been killed either by other prisoners who "know what they are" or, if they someohow get released, then they are at the mercy of the general (and stupid) public. This happens becauise of opinion, not fact.. if anyone actually looked at the numbers, they would realize they are punishing 95% for the POSSIBLE actions of about 5%.

If you have not seen that sex offenders are getting murdered, then you are living in fantasy land. Its not hard to understand why you believe there is no comparison with Nazi Germany and America, because you live in neither, you live in fantasy land.

And yes, my brother is listed as a sex offender. He was a sexually oriented offender (lowest form of danger) who got bumped to the highest level. (Tier III) This all happenned WITHOUT ANYONE LOOKING INTO HIS CASE. If thats not NAZI behavior, I dont know what is. Our government is painting targets on the backs of a million people who have already paid for their crime, but because of old womanizing John Walsh and his dead kid, and activist judges and attorneys, those people will all be imprisoned or dead within the next decade. Not similar to Nazis? Need I remind anyone Hitler took power LEGALLY? And his decisions toward jews were laws? So how is it that there is no comparison? I will say it now, I believe Bush was the reincarnation of Hitler in this country, and with his pen he destroyed the lives of a million people who may have made a mistake, but will never be given a chance to be free of it.

You know, like being born a Jew? It was plain to see they weren't human, so they needed to be restricted. Well, now its 'plain to see' that being a sex-offender is something BEYOND HOPE, so we need to fear these people, lock them up, and let the general population in prison deal out their justice. Regardless of the fact that they served their time? There is a culture of fear and hatred growing around these people, just like the Jews. Our country has a lot of problems right now that we all dont see eye to eye on, but I tell you this, nothing brings people together like finding a whole sub-group of "monsters" tp blame and punish for all their problems. Like the Jews.

Yet you think comparisons to Nazi Germany are over the top? No Jews in Germany thought they were going in that direction or they would have fled Germany and possibly europe. 6 million Jews did not see it coming, so I would say it is quite possible for you to be missing the comparison as well. Just remember, your family member who is a sexc offender will never get the legal recourse he/she deserves because their own family members don't think its "that bad yet". Well, it is, and people's lives are ruined because of these Nazi laws.

Thanks to George and Rodsmith for helping, trying to make some sense.

Posted by: tbucket | May 18, 2010 12:14:52 PM

"You did notice that the opinion was about the federal government's powers under the Necessary and Proper Clause, right? I suspect what you find 'disturbing' and 'wrong' about the opinion was the theory the court had already approved in Kansas v. Hendricks and the like."

Yes, of course I noticed that. And that's what is wrong about the opinion. The fact that a state may enact the statute is a far cry from the federal government doing so. There is simply nothing in the constitution authorizing commitment of an individual after the imposed sentence runs its course, and the N&PC should not do that heavy lifting. The federal government is not the sovereignty that is supposed to "protect" the public. That responsibility belongs to the states. The federal government can act in such a manner only if it is necessary and proper to its enumerated powers. There is no enumerated power that if furthered by civilly committing sexually dangerous individuals.

Posted by: DEJ | May 18, 2010 12:21:10 PM


We get it. You're concerned about the slippery slope. And rightfully so. The craze against sex offenders is out of control, and IMO we need to scale back many of the residency restrictions and more appropriately tailor registration requirements.

But, the comparison to Nazi Germany is unwarranted. One of my classes in law school discussed the beginning of the Third Reich, which used both constitutional and extra-constitutional measures to obtain power. I'm not going to engage in an extended history lesson with you, but rest assured this is not the beginning of the Third Reich. Is it concerning? Yes. Is it wrong? Yes. Do we need to re-examine many of our retroactively-applicable sex offender laws? Yes. But you are not engaging in effective advocacy by declaring Bush the Hitler-incarnate, and comparing civil-commitment to concentration camps.

Finally, you continue to harp about your brother becoming a Tier III sex offender based on statutory rape with a 15 or 16 year old. Either: a) he's not really a federal Tier III, or b) there is something more to the story of his prior conviction than mere statutory rape. A Teir III offender must have: used threat, force or fear; impaired the victim or knew the victim was incapacitated; had sex with someone under 13; kidnaped a minor; or was already a Tier II offender. See 42 USC 16911.

Posted by: DEJ | May 18, 2010 1:11:29 PM

Wrong! It was a plea agreement to Class D felony Sexual Battery - Unwarranted or uninvited sexual advance. The original charges were sexual misconduct with a minor, a charge that garners LESS punishment than what he plead to now then it did before AWA was enacted.

The charges were CONSENTUAL (Once again, if you actually had KNOWLEDGE of the individual case, you would not jump to the conclusions like you did..) And the reason it was a crime at all is because her Momma did not approve. Further, if you had knowledge of the case, the police sworn testimony and depositions, you would know that NO SEX OR VILOENCE TOOK place at all, only a kiss and a cuddle. This was enough to send her mom into a towering rage, however, and press charges. Later when 'mom' saw how big a deal it was being made into, no longer wanted to press charges, but by then the state had taken over. The fact is, to plead guilty to a lesser crime, there have to be elements of that crime present. The prosecutor MADE my brother say that he forced the girl to kiss him, so the plea agreement could happen. This was a lie, and I dont see how LEGALLY that can happen, but it DID. The facts: My brother engaged in a consentual make out with a 15 year old girl when he was 21. He plead guilty to class D felony sexual battery to end that nonsennse and NEVER DID A DAY IN JAIL, NOR SHOULD HE HAVE.

Your assumptions are the same kind that reclassified him to begin with.. YOU thought you knew everything about his case, but you don't. The paperwork SPECIFICALLY says sexual battery is now a tier III after AWA enactment, even if it was a low class felony (D) before. You made the same mistake lawmakers did in ASSUMING you knew what happened, but as I just proved, you knew nothing. There is NO FORMULA for who gets punished that makes sense.. he was listed right next to rapists in seerity of crime, and had he not plead to a "lesser" crime, he would be in LESS trouble today.

Oh, and screw you for calling me a liar.. I would think I know more about it than you considering it was my family that was effected.

Posted by: tbucket | May 18, 2010 1:42:21 PM

And it wasn't statuatory rape at all, so stop assuming you know everything about how these laws work.. apparently nobody does.

Posted by: tbucket | May 18, 2010 1:45:01 PM

So the answer was D) You have no idea what you are talking about.

Posted by: tbucket | May 18, 2010 1:49:22 PM


All I was trying to do was explain to you that in order to be in Tier III, certain elements needed to be satisfied by the prior conviction. And, in fact, such elements were present in your brother's case based upon what you just ranted about. Felony Sexual Battery, generally (it depends on the state), requires force or threats. Your brother, according to you, admitted to that.

You say he lied. And that's quite possible; it happens all the time. You can't, however, blame the "system" or "laws" for placing your brother in Tier III, when it is his lying about using force that placed him there.

Posted by: DEJ | May 18, 2010 2:36:49 PM

"George--Maybe I missed this, but were some of the Comstock defendants imprisoned for being gay men? If not, then I'm not quite following the Hitler comparison."

No, because they broke the law, like the German citizens broke the law, which was sometimes statutory rape. Really, the documentary does a very good job of explaining how Hitler started his eugenics campaign, which many in our country approved of and supported.

Eugenics and the Nazis -- the California connection

Edwin Black Sunday, November 9, 2003

Hitler and his henchmen victimized an entire continent and exterminated millions in his quest for a so-called Master Race.

But the concept of a white, blond-haired, blue-eyed master Nordic race didn't originate with Hitler. The idea was created in the United States, and cultivated in California, decades before Hitler came to power. California eugenicists played an important, although little-known, role in the American eugenics movement's campaign for ethnic cleansing.

Eugenics was the pseudoscience aimed at "improving" the human race. In its extreme, racist form, this meant wiping away all human beings deemed "unfit," preserving only those who conformed to a Nordic stereotype. Elements of the philosophy were enshrined as national policy by forced sterilization and segregation laws, as well as marriage restrictions, enacted in 27 states.

This was the back story behind Skinner v Oklahoma.

Posted by: George | May 18, 2010 3:20:14 PM

He did not use force, and even if he had forced a girl to kiss him (which he did not) I just don't see that as a TierIII sex offense. The problem with the law, and I CAN blame it, is that when in 2007 it retroactively effected people with new, more stringent effects without even looking at the case to see if a "broad brush" approach was appropriate. No legal recourse to challenge it either.

My brother committed his "crime" in 1999. Never did a day in jail or prison. The Judge even commented in the case that it was all blown out of proportion.. I blame the law for using the wide brush approach and taking him from the lowest form of restriction to highest without even looking at his case. Now go look up article 10 of the constitution and tell me what it says about retroactive punishment. And just because you call it something different, it is punishing him regardless.

People can act tough and say "If you cant do the time, dont do the crime" but in his case, the "time" changed 7 years after the case was closed. How you cannot see anything wrong with that is beyond me. You said "You can't, however, blame the "system" or "laws" for placing your brother in Tier III, when it is his lying about using force that placed him there."

When that is not true.. it placed him as a sexually oriented offender. (Lowest form punishment)The Adam Walsh Act, which came 7 years after his conviction is what placed him in Tier III. (Highest Form) Not a lie, not his actions.. just wide brush punishment. This happened to 26000 other people in Ohio besides him. None of them committed any action to merit Tier III reclassification. It was an illegal law change that is being challenged even now in court. (State vs. Bodyke) You even said (previous post) he must have already been Tier II.. that is an ignorant statement. Noone was Tier- ANYTHING before 2006, it was a change in the law that created the Tiers. He was lowest level felon and lowest level offender. (SexOrientedOff)

Like I said, the conclusions you came to about his case are without merit becuase you were uninformed of the particulars. (Case being from 1999, retroactive reclassification in 2007) Even your summary of "why he is in the trouble he is in" was flawed because of the illegal expostfacto reclassification AWA causes. The very ignorance that makes that law illegal is inherent throughout your entire statement about a person you do not know committing an act you did not witness and a case you did not review. If you can say it was deserved without seeing what happened, then it is easy to see why ignorant illegal laws like AWA get passed. Herd mentality.

Regardless, the Constitution states after the fact punishment is illegal, and even though he was supposed to be off the list this coming spring, they are trying to illegally keep him for life. Thats the issue. He had a contract with the state (plea agreement) they violated it and changed the terms of his punishment. All that remains now is to see if Ohio Supreme Court pushes expostfacto to the side, and alienates the rights of a group of peole who believed there was a chance for redemption after paying for their crime.

Anyhow, you may say I "Rant" about him, but hes my family and I love him. He doesn't deserve this, and God willing, this will be over for him soon, like the original punishment stated. I won't continue this conversation further, I have already divulged sufficient information on a case that is actually none of your darn business. I apologize to my brother for doing so.

Posted by: tbucket | May 18, 2010 3:21:10 PM

I think you complain unnecessarily because we agree about more than you realize. I am in total agreement with you that these laws are unfair. I am in total agreement with you that when the AWA re-classified individuals it was also unfair. I worked in Ohio for a brief time, and I know clients who this happened to. It's not right; it's not fair. I would even say it’s arguably unconstitutional. I hope those cases where this issue is being litigated do succeed.

Nonetheless, we're arguing about two things: 1) it's not Nazi Germany, and 2) whether all individuals with a sexual battery conviction (absent retroactivity concerns) should be in a high offender classification. I won't go on about point 1) again other than to say that it's because I agree with you on so much that I hope more effective advocacy would be used.

Concerning point 2), you’re upset that I don't know "the particulars" of a prior conviction and did not "review[]" the case. The problem with this is that the elements are the elements: I do know the elements of OH Sexual Battery.

By admitting a sexual battery, one NECESSARILY admits that "sexual conduct" occurred. “Sexual conduct” involves a whole lot more than “kissing and cuddling.” I won't go into excessive detail but, in essence, it's either intercourse, fellatio, cunnilingus, or other insertion. OH Rev. Code 2907.01(A). And it read that way in 1999. Further, by admitting a sexual battery, such acts MUST occur when the offender "coerces" the victim, the victim cannot voluntarily submit, or there is a custodial-relationship between the victim and offender. See OH Rev. Code 2907.03(a). And, again, it read that way in 1999.

Now you say: "but it didn't happen that way. He lied when he pled guilty." To which I say, then he shouldn't have admitted to such conduct.

The problem is that when you look at the elements of sexual battery, it covers some harsh conduct. Therefore, I don't blame legislators for wanting all sexual barterers to be in a high sex offender classification. I would probably put it in Tier II if I were a legislator. But I would, in agreement with you, require it to only be prospective.

That being said, there is no need to know the "particulars" of a prior conviction when you know the offense's elements. I hope this clears up any anger you have.

Posted by: DEJ | May 18, 2010 4:56:52 PM

Not with the law it doesnt. We now punish people because of the charge, not the crime.. and after the fact. Until that is changed, my anger will remain and be aimed at anyone who supports such BS.

I will not speak to my brothers conviction any more, but I will tell you that you are wrong on a few points: The "victim" admitted to the same actions my brother did, and none of them pointed toward the sexual actions you indicated above. So that did not happen as you said it "must have" . A cuddle could indicate over-the-clothes fumbling, caress of breast, long kissing, etc.. there did not have to be any penetration or genital touching or fellatio for that charge to stick. How it happened is not your business, but it did not happen the way you said it "had to" for the law to stick - the victim's testimony proves that.

And do not forget the original charge pertained to the facts, the plea bargain pertained to what the prosecutor told him to say if he wanted a plea bargain at all. I have read the depositions, testimony, and police reports... nowhere in any of them did the "forced kiss" situation exist until 5 minutes before the plea bargain was accepted by the court.

Maybe you can say you would not have admitted to that.. but you have never been in that situation, so you have no frame of reference.. you do not know what you would do, because you did not live it. And to say "I would do this or not do that" really isn't germain when speaking of someone's else's case, and personally I could give a darn what you would do if it happened to you. It is not applicable, and is only you trying to wrap your ego around the situation and fantasize about how you would have "done it differently than that guy".. leave your fantasy at home, it does not help anyone this effects.

Don't mistake me, I am not mad at you.. but you did say I was erroneous in my facts and I am not. I lived it with the rest of my family when it happened. We knew all the facts, he was upfront with us and we read all the paperwork involved. I just don't like being called a liar, in so many words, by someone who insists "this or that must have happened to satisfy the requirements" and yeah thats how the law reads, but thats not how it went down. I was there, you were not.. and if you cant see you were trying to BS whistle on me, then you will never have a clue why I resent it.

The law is implemented by fallable human beings, and if every legal situation fit within a certain set of criteria, then we would not need appeals or challenges. Things that happened in human lives are more than black and white, and the very fact that wide brush laws dont take the human element of the story into consideration. Look at the charges and they are all scumbags.. look at the cases, and there is (most of the time) an understandable situation or poor choice. I personally look at what happened, its too bad most people can only see the label.

Posted by: tbucket | May 18, 2010 5:51:46 PM

For the record, I don't mean the claim the U.S. is like a Nazi state today, but only argue the potential slippery slope is possible enough that vigilance in the form of comparison need not be offensive. The U.S. did after all start with colonies for the unfit but when that proved to be too expensive sterilization was a cheap solution.

Are we there yet? No, pretty far from it. As long as Buck v Bell is still good law, there is enough potential to be alert. There is a sentence over at the SexCrime blog that is worthy of alert:

It seems like the Court was unwilling to acknowledge what everyone who supported this statute knows - 4248 was a means to incarcerate sex offenders after their release.

It never occurred to me before, but what if the SCOTUS knew at the time that Carrie Buck "defense" was a farce? See Three Generations, No Imbeciles: Eugenics, the Supreme Court and Buck v. Bell.

Posted by: George | May 18, 2010 6:32:00 PM

Didn't one of the justices compare TB with sex offenders?

What I find disturbing is that some of the 4 men were convicted on charges of possession of child pornography. Granted, I don't know the number of images possessed, but at the same time, no one has proven that someone who looks at or has possessed child porn Will molest kids. When will adult porn be the reason for commitment [especially in the bible belt]?

Posted by: Huh? | May 18, 2010 10:22:59 PM

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