Thomas Beckett and Elliot Spitzer

Thomas Beckett: Archbishop of Canterbury and Justice in America.

Does a question generally considered to speak to Church and State have any connection with jurisprudence and concepts of equal justice?

In the 12th Century, Henry II ruled an empire from England across the south and west of what is now France (Aquitaine). By Divine Right, this King of England was the law in every aspect of life. Every aspect save one. The other power in this empire was the Catholic Church.

Henry II ruled with the able hand of his lifelong friend and Lord High Chancellor Thomas Beckett. Even these two powerful men could not hold sway over the dominion controlled by the Church. Crimes and misdemeanors committed in the realm met with the justice of Henry’s court; unless a person holding office within the Church committed that crime. In that case, the Church held authority. More, Henry ruled every aspect of his own life, until it crossed a line of sacrament. There, Henry’s primacy bowed to the primacy of the Church.

From this conflict rose the Anglican Church and the concept of the primacy of secular law over religious principle. In the end, it is decided that the rule of law exceeds the tenant of religion; Separation of Church and State.

Now, it seems there comes another conflict of primacy. More often, it appears that there is a separate rule of justice for government and governed. Some few examples begin with the Rodney King affair.

That Mr. King was guilty of failure to yield and obstruction of justice is clear and not a question. That the Sheriff Deputies violated Mr. King’s Civil Rights under Color of Law is also clear. That not being convicted of this in the most part is a question for observers of the court.

What comes into question is that the Deputy most culpable in the incident was given the lightest possible sentence and never served the sentence. There was, in the United States Sentencing Guideline (USSG) a method for Downward Departure from a sentence. In effect, a sentence mandated by the USSG can be departed from, lessened, through this legal mechanism. In the Courts decision to depart from the sentence, the Court held: A Downward Departure is only warranted in unwarranted circumstances. After finding the circumstances unwarranted, the Court departed from the sentence and awarded ‘time served’ so that none of the Deputies ever served a single day incarcerated. Immediately after this departure, the section of the USSG allowing Downward Departure was removed from the Guideline.

This is not the only example of a separate justice for the government over the governed. Senator Foley readily admits to behavior that would leave any citizen subject to punishment by the severe laws this same Senator championed. Yet, Senator Foley is not forced into second-class citizenship by residency restriction or smeared by being posted on a public registry.

The US Attorney decided not to prosecute Elliot Spitzer. It is a poorly guarded secret that Mr. Spitzer avoided prosecution in exchange for resigning his post as governor. Nowhere does anyone ask why a man who viciously prosecuted cases against prostitution at any level was not punished to the fullest extent of the law for actively participating in the operation of an interstate prostitution operation.

Do we dare wait to see what is not going to happen in the case of Senator Boxer’s Aide? Is separate and unequal going to prevail again?

This is not a polemic. There is no desire to see Mr. Foley or Mr. Spitzer suffer punishment for their actions. Even the LA County Deputies are welcome to their sentence departures. What is being asked is whether a free society can exist in an atmosphere of separate justice.

The reasoning in all these cases is that the public shame, loss of position, and previous years of service is punishment enough. That further punishment would somehow be cruel and unusual. That must be the reasoning. The alternative is that the law does not apply to the government.

In a society based on law, the law must be equitable and it must be applied uniformly. Senator Foley and Governor Spitzer are not unique in serving long and honorable careers. The overwhelming majority of persons convicted of ‘sex offenses’ had an honorable life. The Senator and Governor are not unique in losing career and the future they had built to that point. The overwhelming majority of persons convicted of a ‘sex offense’ have lost even more than these government officials. Neither is unique in suffering shame because of poor judgment. The overwhelming majority of persons who committed a ‘sex offense’ are not only shamed by their offense, they continue to be shamed by the lifelong requirement of being on a public registry and under severe residency restriction.

In many states, these victims of the Foley’s and Spitzer’s of the nation will never be allowed to be in the presence of their own children or grandchildren without supervision. In most states, the victims of the Foley’s and Spitzer’s will never see their child on a sports team or in a school play. In some states, the victims of the Foley’s and Spitzer’s of the nation will not be able to attend religious services with their children, or even by themselves.

Leave Mr. Foley and Mr. Spitzer alone. Do not force them to be subject to the laws and regulations they so valiantly championed. Let them live in the shame of knowing they are the worst sort of violator of those laws.

Do one rational thing. Repeal these repressive and ineffective laws. Tell your legislator and prosecutor to not enact or prosecute laws to which they will not be subject.
Morals are a learned value. It is not something that can be legislated or adjudicated. If you do not want prostitution in your neighborhood, remove it from the crime statutes and regulate it.

Do not fall victim to hysteria and myth. Sex Offenders have the lowest recidivism rate among all classes of crime. The overwhelming majority of ‘sex offenders’ are not rapists or child molesters. The majority of sex offenders had no victim contact and many did not even have a sexual component to their ‘crime’. Ninety-five percent of all sex offenses are first time offenses. For the statistically challenged, that means that ninety-five percent of all sex offenses are committed by a person who is not and would not be on some ‘feel safe’ registry. Ninety percent of all sex offenses are committed by someone known to and trusted by the victim, not a stranger who lives next door or a thousand feet from a school. Eighty percent of all sex offenses are committed by a close relative in the home of the victim.

If you want a moral and safe society, end the criminalization of sex. If you want your children to be safe, educate them and spend the money to treat first time offenders. Education and treatment work. Hysteria and myth driven Registration has been tried for twenty years and has had no effect on the rate of sex offenses. For decades, prostitution has been swept from the streets with a net result of endangering the lives of both client and sex worker.

To put a polite conclusion to this, those who continue to criminalize sex and enact more and more restrictive ‘Sex Offender’ Registries have a perceptual difficulty in that they cannot discern their anal orifice from a large excavation.