California Makes a Bad New/Old Law

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I’ve voted two times against giving people who rape children the death penalty.

I authored a bill to put them in prison for life without parole.

That pretty much sums up my attitude toward people who sexually abuse children. I don’t want to kill them, but to say I have no use for them is an understatement.

I’ve also written several times about the clergy sex abuse scandal in the Catholic Church.

I point to all these things now in hopes of forestalling what I am guessing will be a hailstorm of negative reaction and wild accusations because of what I’m about to say. I think the new California law temporarily erasing the statute of limitation on child sexual abuse is a bad law. I would have voted against it.

The new statute I am talking about passed both houses of the California legislature a few weeks ago. It is now on the governor’s desk, waiting for his signature to become law. The law is clearly aimed at the Catholic Church. It exempts public schools and and other government institutions, as well as the child abusers themselves. It also repeats something California has already done once, which is to rewind an old law and essentially erase the statute of limitations on old sexual abuse cases.

Here are the reasons why I think this is a bad law.

Rewind

1. It is a dangerous practice to make people retroactively guilty. Change the law going forward, if you want. But don’t go back and re-write laws in the past to find people guilty of things they wouldn’t be guilty of under the laws as they were at the time they committed the crime. The situation in the new California law is a shade of that practice (which is unconstitutional on its face) since what we are talking about is re-winding the statutory time in which a crime can be punished, in this case, by civil lawsuit.

Let’s say, as a for instance, that the statute of limitations on rape is 5 years. Let’s also say that it comes to light that a general in the armed forces participated in the gang rape of several enlisted personnel back when he was a lieutenant. This was decades ago, but he even though he hasn’t participated in any more rapes (that we know of) he is now turning a blind eye to other rapes in the ranks.

One way to get at this monster would be to rewind the statute of limitations (say we do it for one year to give prosecutors a window to get at him) and extend the time rapists can be brought to justice to 40 years instead of 5.

Problem solved, right?

No.

Problem created.

What we would be doing is setting a precedent of selective justice, and worse, selective law-making, to get at one man. We would be declaring open season on anyone that prosecutors and legislative bodies of the future want to take a crack at retroactively. It might not be such an undoubted monster the next time. It could be anybody, including anybody that the special interests who actually write most legislation want to get at.

We could end up with powerful businesses retroactively suing their competitors out of existence with this practice. In fact, given that most legislation is about helping businesses destroy their competition with laws they write themselves and then get their bought and paid for legislators to pass for them, you can bet it would and will happen.

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2. The California law is, as I mention above, aimed at one group of people, in this case the Catholic Church. The practice of writing laws to get at one group of people, no matter who they are, is egregious.

Here’s why.

When we’re going after a group of people most folks think of as the boogeyman, in this case, a huge Church that not only tolerated, but enabled child abuse for a long period of time, it’s easy to decide that any way we can make them suffer is a good way. However, as always happens with these intrusions of the irrational in lawmaking, what begins as a seemingly justifiable exception, soon becomes the unjustifiable norm.

If the legislature can do this once, as they already have in California, then the legislature can do it again. And as with most things, the more they do it, the less outrageous it seems and the smaller the reason required to do it again.

Pretty soon, we’ve got major corporations writing up legislation that specifically limits their competitors or uses the government to control their customers, and doing it by name.

This is actually just the next step in special interest legislation. Special interest legislation of this type takes up almost all of legislative time right now. This is a bit off the subject, but if special interest legislation was eliminated, most legislative bodies in this country could finish their work in about a quarter of the time they spend today.

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3. There are better ways to punish long-term miscreants than retroactive laws. Legislators do have to put on their little thinking caps. But it can certainly be done. What they have to do is pass a law that begins when it is signed by the governor and goes forward and that is written for everyone.

Of course, I am guessing that California already has all the laws it needs to deal with child sexual abuse in institutional settings. Those laws just weren’t utilized at the right time. Outrage that child sexual abusers escaped punishment because the powerful abused their power is what fuels the desire to use lawsuits to punish the child abuse enablers now.

But civil lawsuits are a poor way to deal with this problem. People who sexually abuse children should go to prison. I am not talking here about Catholic priests. I am talking about all child sexual abusers. I’ve had some dealings with this in Oklahoma and I can tell you that far too many of these guys skate. There are lots of reasons, but judges who, like Dr Richard Dawkins, just can’t seem to see the harm, are among the primary causes.

I believe that sexual abuse by a priest, or any clergy, is especially egregious simply because the trust people place in their clergy puts them in a vulnerable position vis a vis the clergy. People confide things in their priests that they don’t tell anyone else in the world. This makes them deeply vulnerable to this priest. Sexual abuse, especially of a child, is a horrific betrayal of this trust.

At the same time, I am becoming concerned that we are developing a legal and social double standard about child sexual abuse. Dr Dawkins, as a for instance, engaged in grand-standing talk about arresting the Pope because of the Church’s child sexual abuse scandals. Then, he turned around and tried to take a wink-wink attitude toward child sexual abuse in other contexts.

Dr Dawkins isn’t alone in this behavior.

I agree with giving longer sentences to those in a position of trust, such as counselors, clergy and doctors, who violate that trust in this way. I think that, considering the vulnerability of their patients and parishioners to them, it is appropriate to hold them to a higher standard. However, those higher standards should be statutorily defined, not handed down willy-nilly as vengeance.

I do not agree with a wholesale two-tiered system of justice which singles out Catholic clergy for higher sentences simply because they are Catholic clergy. That is discriminatory on its face.

I think the new California statute is a bad law that sets a terrible precedent. It’s just a matter of time before that precedent ends up being used and abused in ways that none of the backers of the law foresaw or intended.

Short-Circuiting the System to Play Elected Dictator

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Prosecutorial discretion.

Now there’s a nice phrase. 

Another phrase that’s almost synonymous with prosecutorial discretion is selective prosecution. One is considered a sometimes valid, if often abused, tool in the prosecutorial toolbox. The other heads off into the dark hinterlands of overt discrimination and flat-out corruption. 

From what I’ve seen, selective prosecution is closely aligned with those other destructors of justice: subornation of perjury and tampering with the evidence. 

Taken together, these little prosecutorial peccadilloes have the ability to overturn our justice system and make it into a tyranny.

Prosecutorial discretion, when mis-used for political demagoguery, can easily become a means of blocking the system and turning the whole legislative/judicial process into a sham. Prosecutorial discretion aligned with political demagoguery is so close to selective prosecution that it’s difficult to differentiate between them. 

My colleague, Leah Libresco, chimed in on the question of prosecutorial discretion yesterday with a fine post on the behavior of two elected officials. These two people are at the opposite ends of the ideological spectrum on what they are demagoguing about, but their misbehavior is based on an identical misapprehension of the powers of their office. 

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One is Kathleen Kane, the Attorney General of the State of Pennsylvania. Attorney General Kane announced a few weeks ago that she would not do the job the voters of the state of Pennsylvania elected her to do. She would not defend the state’s law defining marriage in court. Why? Because she doesn’t agree with the law. She seems to think that the law is immoral.

Her announcement was greeted by cheers from gay rights activists and uncomprehending silence from most of the citizens she betrayed. Attorneys General have gone about the business of doing their jobs for so long that most people just take it for granted that they will do them. In fact, a lot of people don’t really understand that when an attorney general flat-out refuses to do their job in this way, it is, and should be, an impeachable offense in most localities. 

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The other is a sheriff in Baton Rouge Louisiana who has been arresting homosexuals for violation of what sounds like the state’s anti-sodomy law. The Supreme Court overturned this law in 2003. I would guess that the sheriff didn’t agree with this decision. He may very well mirror Attorney General Kane by thinking that the decision is immoral.  

This debate about where personal morality ends and the responsibilities of office begin is not nebulous. It also does not apply to employment situations such as whether or not a pharmacist is required to fill prescriptions for RU486, a nurse should be required to assist in an elective abortion or a florist must sell flowers for a gay wedding. But it applies absolutely to elected officials. 

The difference — and it is an enormous difference — is between ordinary employment and elected office. An elected official who refuses to fulfill the requirements of their job or who deliberately oversteps the limits of their powers, is violating a public trust. They are violating the Constitutional privilege to hold office and execute the powers of the people in the name of the people.

Public office is not mere employment. It is the indispensable ingredient of the smooth functioning of a just and stable government. As such, it is incumbent on every and all elected officials to do their jobs to the best of their abilities and not the abuse the powers of their office. 

I react to both the situations described above, not, as Leah did, as a philosopher, but as an elected official who has been charged with fulfilling the duties of office for 18 years. I understand several key things that proponents of these two elected officials’ actions won’t accept.

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First, law enforcement, from top to bottom, is not law making. Law enforcement enforces laws. It does not write them. If Attorney General Kane wanted to work to overturn Pennsylvania’s marriage law, there were many options open to her, including running for election to a law-making position. Since she is an attorney, she might also have considered not running for office at all and filing cases against the law, maybe doing it pro bono. 

An Attorney General is not supposed to even take positions on the laws which they are sworn to defend and uphold. By that I mean that she should not be out making stump speeches against such laws — or for them, for that matter. Her job, and I keep saying this, but nobody seems to hear me, her job is to uphold and defend the laws of the State of Pennsylvania.

This is especially grave since, like all elected officials, she is the only person in her jurisdiction (in this case, the entire state of Pennsylvania) who holds the power of her office. If she refuses to do her job, the job can not be done by anyone else.

This is equally true of the sheriff in Baton Rouge. As an elected official, he is the only sheriff in that jurisdiction. No one else can do his job. Also, he is not a law maker or a law interpreter. He is a law enforcer. The decisions about what laws he should enforce are made by Congress, the legislature and the courts. 

Elected office is a privilege, not a sentence to be served. If any elected official finds that they cannot in good conscience perform the duties of their office, they have the free right to resign at any time.

Leah Libresco used a quote from a play and movie about my patron saint, St Thomas More, in her analysis. Thomas More was the Chancellor of England. Despite the enormity of this position, he resigned when his conscience would no longer allow him to discharge his duties as the King demanded. This is a good example for all of us who hold office. 

If Attorney General Kane can not in good conscience do the job that her office requires of her, she has the clear option of resigning. What she does not have is the option of refusing to do her job and thereby depriving the people of Pennsylvania of the legal representation they are Constitutionally entitled to. 

I am glad that Leah found this example giving the other side of this argument. Maybe it will help clarify what is at stake for those people who are so enthralled with their particular advocacy that they are willing to support overturning the very structure of government that gave them the right to advocate in the first place. 

From Unequally Yoked:

I’m a little troubled by the way same-sex marriage is becoming de facto legal in Pennsylvania.  When I was having SCOTUSblog parties back in June, I found the reasoning based on standing kinda messy.  If a law is challenged, it seems like the appropriate state officials should be obligated to defend it.  Ducking it seems like a odd kind of de facto veto.  And not a proper civil disobedience-y one, a la Mayor Jason West of New Paltz, who conducted then-illegal marriages and was charged for it.

And now this is playing out in Pennsylvania.  The PA Attorney General Kathleen Kane declined to defend her state’s ban on same-sex marriage, and it’s unclear who will pick up the baton, or if anyone will be left with standing to do so.  The proper way to overturn laws is repeal or, if they’re actually unconstitutional, letting them have their day in court.  Not short-circuiting the system over a conscience objection.

 


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