Saturday, December 31, 2005

Being opposed to monitoring people who have not committed a crime does not contradict supporting it for people who have committed one.

I recently got an email from someone who has been a reader (though infrequent commentor) on 'Deep Thought' since it began. The email asked about three posts in particular: My post from July 7, advocating electronic tracking of high level sex offenders, (follow up on August 3), then about a post I made on October 15, The prison which follows prison (discussing the lack of societal support for convicted felons who leave prison and want to succeed in society), and the post I made this past Thursday about RFID chips along with other statements I have made opposing the right of the government to spy on you. The reader asked whether these three posts taken together were contradictory.

My answer is, 'no, not at all.' First of all, I continue to oppose searches which violate the fourth amendment (such as surveillance without a warrant) and consider it a fundamental Constitutional right to not feel the weight of government snooping in your life.

At the same time, convicted felons surrender many of their Constitutional rights upon conviction. Some of these rights are restored over time, but in other cases they are not. An obvious example is the second amendment. I am in fact a full supporter of the second amendment and completely support the right to buy any make or model of firearm. However, we deny this right to convicted felons, and it is done so because of the increased risk, based on past behavior, that that person in particular is more likely than other people to use a gun to hurt someone else. That is a reasonable restriction. And does it prevent felons from getting guns? No, it does not. But we maintain the right as a civilized society to nevertheless put these sorts of restrictions in place, against those people who have demonstrated that they are capable of committing a crime against someone else. Now, I don't universally support restricting all Constitutional rights for felons, only those that demonstrably could allow them, by abusing it, to harm someone else (since they have already shown a propensity to do so). For example, the right to allow felons to vote is a complete mosaic over the states: Maine and Vermont allow them to vote even while they are in prison. Four southern states never allow them to vote, no matter what the felony was or how long they have been out of prison or off probation without committing a crime. The other 44 states range everywhere in between. Unlike the gun restriction, there is no uniformity in this case, and since it is hard to see how allowing someone to vote would demonstrably harm society, that restriction makes no sense. I don't have a problem with not allowing someone in prison or on probation to vote, but once they have paid their debt to society, this is not a right it makes sense to continue to restrict.

So, we come to the question of tracking devices. Now, as I said above, I consider that we should be able to go through our lives without the government snooping on us. However, in the case of some convicted felons, they are in fact on parole, which depending on its terms, can require regular meetings with a probation officer, detailed accounting of where someone has been and with whom, or other restrictions on privacy. There are also provisions for 'house arrest,' in which case a person's whereabouts can be electronically monitored 24/7 (which is what happened to Martha Stewart). These are both completely warranted sentences given within the criminal justice system, and are a humane and cheaper alternative to longer prison sentences. There is no right to privacy assumed within the criminal justice system, nor should there be.

Now, in the case of sex offenders, they have special laws that pertain to their status as sex offenders. The reason for these laws is very simple-- it has been shown in study after study that sex offenders, especially pedophiles, are unable to change their sexual appetites, and as such will remain a menace to society as long as they are on this earth. Recognizing this to be the case, there are two strategies which we can and should pursue: the first is that while we can't get rid of the compulsion to have inappropriate sex, we can and should treat it with ongoing counseling (no, this is not a waste of money, and even if it were, we have an obligation to ourselves to try). The second is the enforcement side. Right now, sex offenders are required to register. But that is often not enough. Some of them don't register, some of them move (as we saw last year in Florida, where a man was living several miles from where he was registered and murdered a nine year old girl), and in some cases other events happen (for example, right now authorities are hunting over 2000 registered sex offenders who fled the Gulf coast in the wake of Hurricane Katrina.) Now, the requirement to register already has been upheld in court as a reasonable measure that can be applied to these particular felons. So putting a tracking device (whether it be similar to the one put on Martha Stewart or an RFID chip) on them is not likely to run into constitutional problems. What it would do would be to save many lives. Even if we assume that people like Joseph Edward Duncan III would still have committed their crimes, it would make it much quicker for police to pick up the scent and catch them before they could kill the children they took with them. And ideally, knowing that this was the case, the offender would not commit the crime (very few commit a crime in the belief that they will be caught). If they moved from where they were registered, that would also show up quickly. And in the case of those who simply chose to not register at their new addresses or evacuees, tracking down where they are now would be much easier. And, essentially, it would mean that the penalty for rape or pedophilia would be a sort of 'life on parole.' That is not unreasonable when we consider that for murder, people can receive a sentence of 'life in prison,' and rape and pedophilia are only one step below murder on the crime scale (and no question that they should be), more serious than either armed robbery or assault.

On the third topic here, whatever specific actions we take to make society safer from people who pose a hazard (this category also includes, for example, chronic drunk drivers and career criminals), we do have an obligation to remember that the 'corrections' department is to correct behavior. And no matter what rate of success we have with rehabilitation programs, cutting funding for them, as has been done over and over, is a mistake. We have to try, so that those who genuinely want to reform themselves, have some option other than a return to crime. Failing that, we will continue to cycle the same group of people in and out of jail, as they enter society and are unable to find legal work. If we are not having success with rehab programs, the answer is not to give up and eliminate them, the answer is to study them and find out WHY we are not being successful and WHAT we can do differently to change that outcome.

Taking common sense measures to protect yourself against the potential excesses of someone and working to make things better for that person are not mutually exclusive.

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