Trendspotting: Protective Exclusions
By Steven A. Carter (12/04/2009)

Carter

Just before the conclusion of a pretty good summer read — Sara Gruen’s “Water for Elephants” — the lead character confesses that his life is now defined by protective exclusions practiced by his watchful grown children.

Not one of us has avoided either being on the receiving or giving end of this most human of instincts. Every parent becomes proficient at the practice, as do many spouses, employers and personal trainers. With no malice intended, we regularly withhold information, emotion or largess for the assumed protection of another. 

In the hands of compassionate humans, protective exclusion need not be pejorative. Little is to be gained from a five-year-old learning the truth about Santa Claus. If the truth be known, our spouses probably do us a favor by not telling us how bad we really look in a bathing suit.

Withholding secrets that disadvantage another, however, is not protection.

In the corporate world, Apple Inc.’s gatekeeper approach, ostensibly out of concern for share prices, to the provision of information about Steven Jobs’ pancreatic tumors illustrates the practice of withholding information to protect shareholders. Since Jobs is Apple, does excluding full disclosure of his true medical condition protect shareholder investments? Would full disclosure alter the possible outcomes?

Outcome influence is the real test of excluding information at any level of individual or social interaction.

Government can risk serious damage to the society it is obligated to protect by routinely practicing and even codifying exclusionary policies under the guise of protecting our basic freedoms. Withholding information regarding depletion of the ozone layer, the existence of weapons of mass destruction or the wiretapping of private citizens is, as we have learned, a slippery slope at best. Yet, all branches of government continue to protect us by practicing exclusion. 

As a system of government, criminal justice functions through exclusiveness more than inclusiveness. Only the military operates more broadly under this approach of protecting by excluding. For an action to be criminal, a law must be enacted establishing the harm, the victim and the recourse. So far, so good.

Our difficulties and subsequent protective and exclusionary practices emerge in the administration of justice. We routinely seal case information in judicial proceedings to protect victims, witnesses and defendants. The practice is necessary to allow a balanced solution to be found. With time, and a modicum of interest, one could explore any area of the criminal justice system and discover sanctioned withholding of information for the protection of a litigant, victim or participant. 

For the correctional component of the criminal justice system, many examples of protective exclusion exist. Every state and local correctional system recognizes the need for a protective custody capability. Assignment to this protected status is required for many reasons and one of the most often used is with regard to an alleged or proved sexual offense. This use of protective exclusion from the general population is essential to safety and good order.

Assuming a successful rehabilitation while incarcerated (certainly not always the outcome), if the exclusion continues in the community after release then the question has to be raised as to whom the exclusion will protect. The Washington State Community Protection Act was a response by concerned citizens that sex offenders were returning to peaceful communities upon release and posing continued threats to public safety. 

Nationally, we all became familiar with the codification of protective exclusion with the passage of New Jersey’s Sexual Offender Act of 1994, commonly known as Megan’s Law, which required the registration of convicted child sex offenders with local law enforcement. This evolved into a registry where any citizen can find the address of a convicted sex offender in virtually any location in the United States. 

Understandably, this use of the rule of law to exclude and protect is a hard one to debate. But what so often happens when a society is more motivated by the fear of the unknown is that we pile on layer after layer of assumed protections. (Tried taking more than three ounces of toothpaste through airport security recently?) The argument is being made in many local and state courts today that perhaps we have done just that with sex offenders.

The crux of the problem is that, with fear and political reputations as a base, many communities went beyond the registry of offenders to actually define their penumbra. For those of you who don’t regularly walk your cat or dog, in the animal kingdom each species has a penumbra, or zone, within which they feel territorially safe. Communities by the hundreds passed local ordinances that defined safe zones as being within 2,500 feet of any public building or place — 1,000 feet in some particularly frightened communities.

Try drawing a 2,500-foot radius around your home and see how many schools, parks, churches, playgrounds or other places where children might congregate you count. By local ordinance in many communities, no person convicted of a sexual offense against a child should be a resident within that penumbra.

Most of us agree that child sex offenders are easily the most despicable of the lot and deserve to be punished to the fullest extent of the law. In addition, virtually all states require that sex offenders participate in treatment programs or risk being detained on a civil commitment after completion of a criminal sentence. Add to that the requirement that they register every move, live a half mile beyond most anything and in some jurisdictions place an identifying sign in their yard, and you easily have a life sentence.

This conflict of rights, of social imperatives, forms the basis of the New Jersey Superior Court’s recent ruling involving the towns of Cherry Hill and Galloway, which held that municipalities cannot enact ordinances that restrict sex offenders’ places of residence. If upheld on appeal, the ruling may bring a fresh reconsideration of what we mean by protective exclusion.

No one wants violent, habitual child sex offenders that have refused treatment living on this planet, much less the neighborhood. Most sex offenders, according to statistics from Massachusetts, re-offend less frequently than other criminals if an intense treatment program is followed during and after incarceration.

Like all other ex-offenders, these persons are free to live within the conditions of their release.

If we choose, for our protection, to exclude them from our homes, picnics, foursomes and places of worship, that is our choice. But the recent Superior Court ruling regarding the Cherry Hill and Galloway communities reminds us that we cannot exclude ex-child sexual offenders from living in our neighborhoods if they satisfy the conditions of release.

The practice of protective exclusions is as old as humanity itself. In “Water for Elephants,” just as in Cherry Hill, the ability to pursue the activities of daily living — in which so much of the human condition and the essence of life are rooted — can be forever altered by how we, as individuals and communities, choose to protect. 

Stephen A. Carter, AICP, is principal of Carter Goble Lee LLC in Columbia, S.C., and a Correctional News columnist.

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