Chelsea's Law, an Opportunity Lost

When Chelsea King, a popular high school student in a nearby town, was first reported missing, I had been planning to drive the few miles to where her car was found to join the many volunteers who were searching for her in the wooded area around a nearby reservoir.  The next day her body was discovered, with the report that she had been raped before being murdered.   I have a neighbor who had a career as a high level official with the California Department of Justice, and now works with registered sex offenders in the eastern part of the county.  He has never been too detailed about what he did,  but when the subject came up there was a sense of frustration, the feeling that that there was much that wasn't right with the system that he was participating in.
As the story unfolded, after the arrest and soon after the confession of John Albert Gardner, a young man who was a registered sex offender, my friend forwarded a document to me that few have read.   It is a thirty-six page report requested by the governor on the details of the defendant with a full analysis of current incarceration, parole and supervision policy in California. This information, provided by the California Sex Offender Management Board (CASOMB)  is so divergent from the public's perception based on news reports, that I felt compelled over the last few months to try make sense out of it all.
Very soon after the Gardner's arrest and his admitting to a previous rape murder, a movement to tighten existing procedures was spearheaded by the local member of the state assembly, Nathan Fletcher,  named after the last victim, Chesea's Law.   As part of his attempt to gather support he requested letters from local cities including Encinitas where I live.

While the vote in our City Council was in favor of sending the letter of support was 4 to 1, the actual events recorded on video show that two of the aye votes were by men who expressed reservations.   One of them dismissed objection saying  the current version would be revised, and the other wanted to include other issues.  Yet, when rebuked by one member who focused on the single issue of greater punishment, both sided with him. Focused anger trumped reasoned consideration, as was recorded on ten minutes of video. Seeing that this episode at our city council  mirrored the very dynamics of how the rules of mob pressure apply even to those elected to represent a city, I decided to speak out in objection.  Now I was a part of this story, and although only seen by the handful who watched the proceedings in person or on television, I was about the only person who was publicly challenging both the substance and the process.

As the weeks went by and I read more, and connected with various officials, including Robert Coombs, the chairman of CASOMB that wrote the report on Gardner's case, I found myself in a bind, since being convinced of an injustice without attempting to rectify it is a special type of curse. If you know something is wrong and do not attempt to redress it, are you not partly responsible for the consequences? The injustice I'm referring to is not to the murder-rapist John Gardner, who deserved his punishment The injustice is to the those future victims who will be the next to be raped and murdered because of a law that is defective. As the CASOMB report concluded:

California has not effectively prioritized when making policy decisions about the management of convicted sex offenders. Many decisions seem to have been made for political reasons or what feels good at the time. As a result, money and time have been wasted on policies and programs that are politically popular but do not make our communities safer.

The pathology now being played out in creating Chelsea's Law is not of individuals, but of something much larger, our very social system.  Just as individuals reach a breaking point, and may lash out against an available target, a spouse, a child or their pet dog.....entire societies faced with intractable frustration can identify an object, a designated evil; and by consensus decide with the focused rage of righteous indignation to eradicate it. It is the awesome symbiosis of concerted fear, hatred and revenge, something few willingly choose to be on the receiving end of.  The power of this force of nature is reflected in the snowballing mass that has brought together the most die-hard liberal and extreme conservative. 

Being in response to sexual offenses against children provides a special quality, as the sponsor said, "a special evil" a fundamental revulsion that elicits outrage against those who perpetrate such acts. Yet, the ability to get at the truth, to identify those offenders who can take advantage of the innocence of children either by familial, personal or institutional circumstances is elusive. Evidence of our particular society's failure to achieve this control is all around us; from the depredations of the highest level of the most ancient Christian Church, to the special privileges of selected luminaries of our own secular priesthood, the Academy of Motion Picture Arts and Sciences. (The sexual crimes such as those of Roman Polanski and of those priests protected by the younger Pope Benedict are specifically targeted for extended terms in prison for a first offense.)

When we actually find someone who is not of a protected group, who is actually guilty, even if the damage is less than traumatic, there is enough pent up rage that demands expression. Under these conditions, it is not only the perpetrator who is the enemy, but anyone who gets in the way of of consummating the full the act of revenge. 

I probably would have done what most people do, and after a while go on to other things in my life, but the San Diego Union Tribune was persistent, keeping this story alive with several articles a day for months on end. On a front page editorial they proclaimed that they were going to take the lead in addressing this problem, with their "Call to Action." I had my suspicions of their motives, knowing that the paper had just been bought out by a venture capital fund that had an immediate need to raise circulation in order to flip their investment for a profit. The owners of a newspaper have an array of methods to implement their goals. While the editorials are the official voice of the publisher; in these times of decreasing job opportunities each reporter and columnist can glean, and then take their cue from, the unofficial tone of the boss. Selecting Letters to the Editor is an especially powerful way to promote the appearance of consensus, to reinforce a given movement and isolate those who challenge it. With these tools they create the image of a united community, with such image eventually becoming a reality, based on the universal human need to be part of their social group.

The Union Tribune's editorial was for "action"; something that could have been diffused by introducing the actual difficulties of dealing with this kind of criminality.  It became a concerted campaign to arouse the public to express their loathing at this crime; but not in the abstract, in the person of the individual John Albert Gardner III. Although he was the main object of scorn, he had to be made to represent every defect of the current legal and administrative system of sex offender law. The narrative of his life had to be condensed and shaped, and if need be also distorted and censored; so that rage at child sexual offenders could be represented by this individual. He was the archtypical "poster boy," pure evil to keep in mind when designing a law that would apply to everyone who could turn out like him. The tragic fate of his two victims had to be associated not only with this man, but all that he came to represent.

It was all going well, when someone threw a monkey wrench into the process, in the form of a long candid interview with Gardner that showed him for what he is, a terribly damaged human being who perpetrated the most heinous crimes. But for those who listened to his hour long conversation, beyond the self serving distortions, the undeniable fact became evident, he was one of us, a disturbed tortured child of woman, and for those so inclined, also of God.

In Gardner's interview he made certain assertions, that his first conviction was an act of rage, a blowup with a friend that turned violent without sexual motivation, and that he accepted a plea out of fear of an even longer sentence. He described his life under parole after his release in 2005, which for the first year was without any infractions, something confirmed by the CASOMB report. He then described how it was only when the restrictions of Jessica's Law were implemented that he was forced to leave his apartment, without there being any acceptable housing available, causing him to live in his car and lose his job, making it impossible to continue child support and the relationship with his two children. He, requested, and recieved a commitment from the interviewer, that his statements be validated, not accepted on face value but investigated. Not only were they never verified or refuted, the substance of this interview has never been reported.

This interview could have destroyed the caricature, the personification of evil that had been carefully crafted by the Union Tribune and echoed by almost all local media. This media generated momentum was powerful enough to cause the cancellation of the planned full reporting of the interview by the local CBS affiliate. The U.T. Columnist Logan Jenkins, one of the more decent responsible members of his guild, did an about face from his previous article favoring justice for people such as Gardner, to one describing him as a loathsome monster whom he wishes to be killed by fellow prisoners. Chelsea's law ratchets up punishment for offenders such as the twenty year old Gardner, a disturbed young man whose crime was relatively minor. Like a masterful magician who amazes the audience by the seemingly sawed-in-half assistant appearing alive in the audience, in this case the switch, the unseen substitution is between the murderer rapist Gardner 2009, and his earlier troubled incarnation. We are about to pass a law that we are led to believe punishes predators who stalk, rape and kill vulnerable young women, yet when the curtain is lifted it will turn out that Chelsea's Law does no such thing, but rather destroys those who could very possibly be helped to lead a decent productive life.

A little background into my earlier foray into the world of penology might shed light on what underlies this article.. The location, the upper West Side of N.Y. was the Berkley of the East, about as far from conservative San Diego as can be found on this continent. I was active politically when I lived there, to the point of being invited to the local Democratic Club in 1995 to present my position on Capital Punishment. I knew If I were going to make any impact on this group that was opposed to my views, this would have to be dramatic, so I began with a narrative:

The young woman had taken a shortcut through a wooded area on her daily run. It was getting dark, and from nowhere, she was tackled, and felt the knife to her throat with the demand to comply as ordered. Helpless, she acceded, numb to the humiliation, to the terror, only hoping that it would be over. Now the attacker, physically satisfied but realizing what he had done, heard the girl promising that she would not tell anyone if he just let her go. But, growing calmer he had a moment to think, realizing that she was looking at his face, that she would report him. If he killed her, there would be no witness, no cry for help, and he could live, as miserable as his life was, he wanted to live, and so.......

I stopped there, and told the audience that what happened in this scenario depended on the outcome of this issue, that eliminating the risk of execution would remove the fear from this rapist of the ultimate punishment. I gave my argument for graduated sentencing, not out of concern for the criminal, but to protect the victim. It is this very same principle that motivates my opposition to Chelsea's Law, that the effects will be counterproductive and lead to more crime.

About this time I had a long conversation with Ernest van den Haag, Distinguished Professor of Jurisprudence at Fordham University and strong defender of Capital Punishment. After a few drinks, he confided in me a rationale that was quite different from mine. With a glint in his eye, he said, "When someone is facing a possible death sentence, it is easy to get them to admit to something, to cop a plea." The same would certainly apply to someone who is caught in sexual exploration with a younger friend that goes bad, where she gets nervous and he panics. Under the proposed law, premeditation or a pattern of such activity need not be shown;  and the threat of life in prison would be enough to garner admission to a reduced offense irrespective of guilt.  Most of the literature makes the assumption that the first conviction has been plea bargained down from the actual more serious offense, but as Dr. van den Haag explained, it works both ways.

My personal dilemma is having an awareness of two truths that are diametrically in conflict. The first is that Chelsea's Law, though a defective product and a missed opportunity, represents something universal in human societies.  This is the social expression of rage,  of organized defense against those who offend against not only the human victim but the values that stabilize our world.  Understanding the sociological underpinnings of this movement does not negate its value, but ignoring the power of this force to counter rational solutions,  is a guarantee of excesses of unknown proportions.

It is part of a long list of such laws, some going back to 1947, that define and then stigmatize aggressive inappropriate sexual behavior, especially involving children. The power of a movement such as that driving this current law is not to be underestimated. Rational redress of actual crimes is the least requirement for what has been described as "Moral Panic." With distance, it is easy to condemn examples such as Witch Burning in Colonial America, or the Pogroms against Jews of Eastern Europe, recent enough for my own mother to have experienced them. In this country in 1942 there was a unanimity in believing that every American Citizen of Japanese descent was at his core a "hated devious Jap," who deserved "containment" similar to that which we are expanding with the current bill for all sex offenders. As is true today with sex offenders, there were some Japanese who were a danger, as they did identify with their ethnic homeland against this country, yet the "mob effect" was such that none would argue for the obvious truth that the vast majority were patriotic Americans.

Serious study of prevention of sexual predation is unpleasant, tedious and ultimately frustrating, since the causes are diverse and hidden. It is easier to ignore the reality that excesses of punishment, of over alertness to indications of pedophilia, take their own toll on society. The human condition is one of infinite risk, from instant death at the hands of drunk drivers, to contacting a fatal virus from the sneeze of a best friend, to lightening from a thunderhead that appeared without notice.....all of these orders of magnitude more probable than death under the circumstances of those of Gardner's murders.

Maintaining a society predicated on the elusive concept of "Justice" is only appreciated when it is gone. Unlike other societies, this belief protects judges, prosecutors and even police who are seen as supporters of this broad invisible concept. Achieving justice is more than guaranteeing a fair trial; it is maintaining a population of potential jurors whose view of the world reflects reality, not distorted by a belief that every man is a would be sexual predator so that even excessive, or wrongful convictions, becomes acceptable.  We need not have a conviction or even a wrongful indictment to illustrate the loss of justice in this area. , In researching this article I connected with a young man from this area, who without the slightest hint of sexual impropriety was discharged from his job as an elementary school aid because of the disputed "crime" of having a door closed when children were present.

While this man only lost his job and damaged his future prospects, during the 1980s, having a classroom door open to the public was not enough to defeat the frenzy of convictions for sexual assaults by day care workers, dozens of whom served a combined hundreds of years in prison.   Now, every one of these cases has been reversed, as controlled research showing the ease of obtaining false accusations from children was demonstrated.  But the lives of these day care workers were grievously damaged, and worse, we see how easily a society can become obsessed with this crime to the point of irrationality. 

In a recent conversation with the Chief of staff of the sponsor of Chelsea's Law, while his office acknowledged that residence restrictions are counter productive, they have no intention of redressing it. Not at this time, not when they are so close to passing this law, not when there is unanimous approval from those in both parties, not when this will be met by accolades from the Union Tribune that may never again mention the "grotesque" effect of forced homelessness due to residence restrictions. So those convicted of early sex crimes against children will spend their lives in containment, some inside prisons, others sequestered by constantly monitored GPS bracelets paid for by imaginary funds from a bankrupt state. And as the Union Tribune admitted, "has the likely practical effect of turning some relatively minor sex offenders into far worse and of spurring paroled violent sex offenders into acting again on their dark impulses."

Unlike with the relocated Japanese Americans, for those contained by Chelsea's law there will be no VJ day where the end of hostilities allows dispassionate reconsideration. World Wars only happen when entire countries are united in armed conflict, organized by the most competent leaders of nations, united in hatred of the enemy. Sexual predation is a pathology of outcasts, of those who for a myriad of reasons cannot direct their sexual urges according to the rules of their society. It is the product of our fallible human condition, so will continue to arise with each new generation. While it is a scourge that elicits the same emotion of mass rage as does military aggression, it is not amenable to the same marshaling of concerted force. How do we transcend this? How do we direct the primal outrage against the crimes of those like Gardner in a political system that demands response to emotions of the crowd, whether the results are effective or not.

There is something unique about the movement of Chelsea's Law through the state legislature. It has done what most American's wish for, eliminated partisan rancor, garnering the support of every single elected official of both parties. This is is so rare, that it becomes all the greater loss of an opportunity if we fail to redress the errors that have accumulated over the decades. It is only at this moment of heightened public passion that such correction can occur. We must acknowledge the truth, that the vast majority of us who voted for Jessica's law may be complicit in the death of the very person memorialized by this bill. We must demand from our media and public officials that they go beyond leading emotionally satisfying movements that result in a body of counterproductive laws. And at election time we must support those making a good faith attempt to forge rational penology, and turn against those who would castigate such effort as being "soft on crime."

Six decades of sex offender legislation, each cathartic to the public and advantageous to it's elected sponsors, results in the accretion of penological defects along with growth of its profitable and thus politically powerful  infrastructure.  Prison unions, GPS systems developers, psychotherapists and polygraph examiners are only a few examples.  We have also seen how in this case more than others, any revision that can be construed as decreasing punishment of sexual offenders will be assuredly the subject of attack ads.

Perhaps, doing just one such revision, eliminating residence restrictions that are shown to actually cause more sex predations, would be the beginning of a rational sex offender penology. And, who knows, it just could possibly start to change the process of political dialogue in this once successful prosperous state.
References to sources mentioned :

1-CASOMB  report of John Garder, relating to Parole System

2-CASOMB list of reports, with link to letter to Nathan Fletcher, rejecting Chelsea's Law without remediation of residence rules.

3-Union Tribune's Editorial condemning Residence Requirements of Jessica's Law

4-Video of Encinitas City Council discussion and vote on bill.  At 1hr 50min (last item on drop down menu)

5-Web site on Day Care Sex Abuse Hysteria.

6-Audio of full Phone Interview with John Gardner

7-California Coalition on Sexual Offending,  report that surveys research showing counterproductive nature of residence restrictions

(c) 2010 Al Rodbell