For some time I've been talking about how politicians, and the lawyers defending their actions, encourage categorical thinking to persuade us to limit our own rights and the rights of others. We're conditioned to be most comfortable thinking in black-and-white terms and about simple and clearly defined categories of things rather than focusing on nuance or subtle differences. We're encouraged in this thinking by a legal system that operates based on precedent, and thus creates an incentive for the government to force its actions, legally and rhetorically, into the same category as actions the courts have previously endorsed.
For instance, we hate and fear terrorism. We're willing, as a society, to do almost anything to fight and resist and protect ourselves from the terrifying things in the dark, scary box marked "terrorism," which in our mind is filled with the World Trade Center falling and hijacked planes and dead innocents. When the government tries to drop particular individuals into that category, never to be seen again, we're not inclined to ask too many questions, however much we might normally advocate skepticism of government power. Hence most Americans have accepted the premise that the state can take any human being on the face of the Earth and detain him indefinitely, incommunicado, without recourse, under the conditions the state sees fit, upon the state's unreviewable determination (based on unreviewable evidence applied to unreviewable standards) that the person is a terrorist or "enemy combatant."
Not surprisingly, the government — always seeking more power — is trying to smuggle more and more things and people and actions into the "terrorism" box, like the War on Drugs and movie piracy. They know that once they drop something or someone into that box in our minds, we're more likely to accept uncritically their exercise of power against that person or thing. Sometimes we buy it, sometimes we don't. Too often we do — we allow the government to convince us, using broad categorical language, that something just doesn't fit into the "rights" or "freedom" box and just does fit into the "safety" or "OMG children" box.
If there's any category or box that robs us of critical faculties quicker than "terrorism," it's "sex offender" or ""OMG DANGER TO CHILDREN!". This week, Jacob Sullum at Reason has a searing piece on sex offender laws demonstrating how categorical thinking about "sex offenders" has led to infuriating, ridiculous, unjust results. It's brilliantly written and researched, and terribly important: I'll ask you to read it all, rather than quoting or paraphrasing. Sullum describes the disturbing consequences of the categorical approach to sex offender registries — like teens who have sex with their girlfriends being lumped in with rapists, sometimes with horrific results.
The government is perfectly aware of our susceptibility to the "sex offender" and "OMG Children!" categories, and is constantly trying to smuggle new things and people into those categories. Consider, for instance, the federal government depictions of cruelty to animals can be banned because they belong in the same category as child pornography, or states using our willingness to tolerate sex offender registries to create animal abuse registries.
This sort of thing persists without much pushback because categorical thinking lends itself to being used as a weapon against people who oppose it. If you question the grounds for the invasion of a dictatorship, you're "objectively pro-dictator"; if you question over-criminalization or the penalties applied to convicts, you're "sticking up for violent sex offenders." That's why the number of criminal laws only changes in one direction (more, more more) and the severity of sentences only ratchets in one direction (up, up, up) — anyone who suggests we should do otherwise is described as "on the side of the criminals." Our receptiveness to that sort of thinking is the primary barrier to a serious discussion about the War on Drugs, with all of its ruinous expense and increased government power — sensible politicians know that we're too likely to accept the argument that they are "soft on crime" or "indifferent to danger to the children" if they engage in an open-minded dialogue about decriminalization.
Everyone in our society has rights — even people accused of, or even convicted of, horrific sex offenses. But there is more at stake in sex offense cases than the individual lives of the accused. What's at stake is nothing less than our willingness, as a society, to accept at face value the categories and labels that the government employs to persuade us, and to accept dramatically increased state power and reduced individual liberty as a result.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016