Repeat Offenders: Misguided Perceptions Lead to Injustice

The term repeat offender is a misleading term as it implies multiple repeat offenses with relatively close events in time, either of a specific offense type, or of a different offense type. Its use clearly puts a picture in the minds of the public that a repeat offender is a dangerous offender, and is someone who is out of control and should be locked away. I will examine this perception to see if this perception is true or false.

Repeat Offender

First, I will determine a common understanding of the term Repeat Offender. The legal definition of Repeat Offender follows from Black's Law Dictionary, eighth edition, page 1110: A person who has been convicted of a crime more than once; RECIDIVIST. [Cases: Sentencing and Punishment, 1202. C.J.S. Criminal Law. §§ 1643, 1650, 1652].

There are two facts we can immediately extract from this definition. 1) The definition is not time limited, 2) conviction of a crime more than once. This last requirement of the definition for a repeat offender implies a repeat offense for the same crime, same crime category, or a crime whether same or other. In other words, the term and definition are sufficiently ambiguous as to imply almost anything, thus the continued misuse and abuse of the term.

Federal courts have held that the facts behind a conviction that reflect conduct that is "functionally identical" or "equivalent" to offenses specifically enumerated in the statute are covered the same as if they were enumerated specifically. With these latter definitions derived from federal court cases, we can now see that to be a repeat offender the offense must 1) be functionally identical or 2) equivalent to a prior offense. There still exist ambiguity with the clearer definition of repeat offender, thus repeat offender or repeat crime can be either tightly or loosely interpreted and still fall within these definitions. Remember Black's Law Dictionary, eighth edition, the definition of repeat offender is not time limited, giving rise to the following type of statement heard from the public.

Getting Tough with Repeat Offenders, Elaine Dufoe, Grade 8 says: "Who knew that the safest country in the world could have such a pathetic justice system. It seems as though the law is more interested in the welfare of criminals than their victims. Repeat offenders are an example of how the law, which is suppose to protect the community, is worried about giving killers and rapists a second chance, and a third, and so on". I specifically chose this quote because a person such as Elaine Dufoe represents the misguided public who demonstrates a belief that the term repeat offender is homogenous, and anyone called a repeat offender is dangerous.

It is the; "their all the same" mental disposition, which has a strong emotional component. Many people in the public with such dispositions will not entertain any other idea or thought. I know this to be true while witnessing the statements of want-to-be vigilantes on the Internet in public forums.

Another example is a person who let me say committed a crime (an act against past law) thirty years in the past, and today in present time, this person commits an act against existing law that is equivalent or functionally identical to that offense thirty years ago. Let us further identify the crime as Indecent Exposure. In the mindset and beliefs of the public, which is equivalent or functionally identical to the statement that Elain Dufoe made, this offender is dangerous and ought to be locked up for a very long time.

From my experience when people who are like Elain Dufoe are helped to see how they are applying an overly broad view of dangerousness, and of repeat offender, immediately a mental block is setup in defense of a desired way of thinking that does not afford relief to a person who has offenses separated by historical time marks, remote from one another.

The legal and judicial systems unfortunately do apply the term repeat offender without regard to time limits, but unlike the public, the legal and judicial systems, particularly the judicial if they are not hamstrung, can apply law with some reasonable measure of justice if they so chose, or are not barred by law to do so.

It is up to people like me and other fighters for balancing law with justice to keep hammering away at rock hard belief systems that entrap the believer as well as the person who is called a repeat offender. Justice demands 1) fairness, 2) reasonableness, and 3) soundness to soften where and when possible the application of cold, but not necessarily blind law.

Not all repeat offenders are the same just as not all people so labeled as sex offender are the same. Distinctions must be made by the legal and judiciary systems regardless of locality or region within the United States. Some repeat offenders do have a moderate to high dangerousness level. Due to the fact that there is no statutory time limit upon the application of repeat to an individual, it behooves everyone to know the facts, rather than apply a blind, meaningless term to individuals who pose no danger at all.

Application of laws that might have good intentions nevertheless must be balanced with the qualities of justice regardless of the beliefs or mindset of people in the public. Politicians must be willing to convince their constituents that it is the right thing to do, and if unable to do so, have the fortitude to stand on the principle of balancing law with justice.

Justice

On justice itself, it is found that justice is being equated with vengeance and retribution by the public, by some in the legislative (political), legal, and judiciary branches of federal and state governments. There was a time when justice meant fair and equitable treatment under the law.

It meant punishment to fit the crime with judicial discretion to provide the proper weights to the scales of lady justice. Then people wanted harsher penalties because fair and equitable treatment under the law was too lax for their liking.

Individuals and families who lost a loved child {John Walsh, Mark Lunsford, Ed Smart, Erin Runnion, Marc and Violet Klaas, Colleen Nick, Rebecca DeMauro, Magi and John Bish, Linda Walker, Mika Moultan and Mary Kozakiewicz......} to a sexual predator, or other type murderer went to the lawmakers and demanded stiffer penalties for everyone.

They told the legislators to put chains on judicial discretion, they did not want to hear about fair and equitable treatment under the law, and they wanted their brand of justice, retribution and revenge.

In one hand, lady justice carried a sword symbolizing power of reason and justice, either for or against the accused. In the other hand, she held high the scales that weighed matters to be decided upon. In western tradition, lady justice symbolized the fair and equal administration of the law, without corruption, avarice, prejudice, or favor. In the United States today, thanks to the overwhelming influence of the revenge and retribution oriented, justice gathers cobwebs, perhaps never to be fully seen again.

We the people must take away the influence of such people previously mentioned. In the beginning after the abduction, sexual assault, and/or murder of their child, each person and family wanted laws changed to get these abductors, sexual assaulters, and murderers off the streets.

As time went on though, these individuals and families, having gained much favor in the eyes of politicians who were seeing re-election for themselves, formed foundations, and the money began flowing in like water, and in time each person and family developed and defined for themselves images for themselves and their organizations, as being the primary forces behind increasingly radical sex offender laws.

Sex, sex offender, sex offenses, sexual, sexual predator are all words and terms when mixed with the production of fear, brings in wealth, power, and prestige for those who learned to use these words and terms effectively. In time, the people previously mentioned knew they could only produce fear if their organizations were to have a viable existence.

No longer was it about the safety of children, for these very person's have helped to label mere children as sex offenders, predators, and molesters. You can read the news articles and op/ed's across this country to see that this is not a lie.

The one time offender, the repeat offender, and the habitual offender regardless were made to be one and the same simply through the lack of positive affirmation that they were not. The biker (Mark Lunsford), and the tough guy (John Walsh) became household names as fighters for their form of justice, revenge and retribution, regardless of what crime, or lack of crime was or was not committed.

This isn't to say that John Walsh and others aren't providing a valuable service, because they are, but their lack of willingness to oppose umbrella laws, to oppose broad sex offender registration requirements forced on those not deserving of the label, to oppose residency restriction laws that displace even children from their homes, says to me that John Walsh, Mark Lunsford, and the other people mentioned as those who stand in opposition to constitutional liberties and protections for all.

The challenge

I challenge John Walsh, Mark Lunsford, and the other people and foundations mentioned in this op/ed to publicly call for fair, equitable, and balanced laws, and fight just as hard for them, as they do for themselves and their foundations, and corporations. This is a challenge I hope I will lose.