Almost every time I stand in the presence of a group of people to talk about sex offenses and accused sex offenders I face the scorn of those assembled. Few crimes are as reviled. But today was different. I stood in the auditorium of a church in Washington, D.C., and faced a friendly group. Imagine, a hundred or so folks looking upon me with approval.
I was a guest of the second annual conference on the reforming sex offender legislation sponsored by a group called, appropriately enough, Reform Sex Offender Legislation. It felt good to be among friends. I know the sorrow they and their families have faced in the relentless and indiscriminate prosecution of these cases.
One thing is abundantly clear: Our laws fail to discriminate between and among the various forms of sex offenses. There simply is a difference between a violent sexual offender and a young man who looked at a few pornographic images of children online or engaged in consensual sex with a young neighbor close in age. But the law requires a one-size-fits-all response to these offenses once a person is released from prison: requiring everyone to register as a sex offender is draconian.
I said as much and more to an audience already persuaded. They've lived on the front lines of this war against over-criminalization and hysteria. I felt today like a prosecutor: preaching to the choir.
At the end of my part of the presentation, someone asked what it would take to get a committee or group of lawyers together from around the country to serve as an intellectual catalyst for change. I told the speaker that I thought there was such support, although it might not yet have taken shape in the form of a formal committee. "You are closer than you think," I said. "You might just be the foot; and I might just be the ass."
I'm sitting on a train thinking about that remark. I've never really trusted movement lawyers. The law is not philosophy. Individual clients come to me and I do not want to be encumbered to anything than the very discrete and tangible interests of my client. No two clients are alike, each brings his or her own menu of issues to the table.
But I wonder, just now. I responded to the call to attend the event because I had seen one client after another socially decimated by the law's unfeeling and unthinking rigidity. I believe reform of sex offender laws is necessary. At this stage, I do not think that there is much the courts are willing and able to do. Most judges adopt a form of intellectual cowardice when things get tense: Like junior officers in the Nuremberg dock, they plead that they were just following orders when they mete out justice with a sledge hammer. They blame legislators for the rules they are sometimes ashamed to enforce.
I believe the front lines of reform will come in the state legislatures. That is where ordinary family members of those harmed by over-harsh laws can tell their stories to those with eyes open to the truth. We say of federalism that the states are laboratories of change. I believe this to be true. I do not believe the federal government is a progressive instrument for change: Its scope is so broad it panders to the lowest common denominator. John Walsh is a hero on the national set; I for one find the 25-year wake for his murdered son to be maudlin.
I don't know whether I am willing to join a committee of lawyers dedicated to changing the law. In confessing this, I acknowledge a certain moral and intellectual cop out. I left a promising academic career at its inception due to a certain epistemological weariness. If there were no larger truths, what was there to teach? The practice of law has liberated me, if not from the dark ghosts inhabiting a dark world, then at least I am liberated from the paralysis and seeming nihilism that comes of a too close familiarity with the leavings of what I sometimes feel is a spent Western intellectual heritage.
But the good people I saw in Washington, D.C., today issued a challenge that echoes. What can be done, they asked, about the suffering their families and friends endure? Implicit in their question was a request for help. I've some soul-searching to do. It's been perhaps too easy to sit on the sidelines and toss gratuitous scorn at visions of the good. Even if there is no certainly as to what goodness requires, that does not prohibit one from opposing unintended consequences resulting in something just this side of evil. I am not saying that sex offenders ought not to be punished; I am simply saying that not all offenses are alike. Voiceless people need others to speak for them.
Whether to become such a voice is a hard question to contemplate.