The Magazine

The Once and Future Offender

Dec 9, 2002, Vol. 8, No. 13 • By DAVID TELL, FOR THE EDITORS
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At issue are the "Megan's Law" statutes all 50 states have enacted since 7-year-old Megan Kanka of Hamilton Township, New Jersey, was raped and murdered by a paroled pedophile in 1994. Their application and requirements vary from one jurisdiction to the next, but generally speaking these laws oblige released sex offenders to register their whereabouts with local law enforcement agencies, which are obliged, in turn, to provide some degree of community notification about the neighborhood presence of said registrants. There is quite a bit of powerfully affecting anecdotal evidence that the Megan's Law mechanism has already prevented some truly ghastly crimes: mothers who glance at a Post Office billboard flyer about a convicted child molester only to see the face of their elementary school's bus driver--that sort of thing. Nevertheless, administering the system has proved vastly more difficult than anyone anticipated.

For one thing, cash-strapped city and county police agencies, especially in the larger states, are fighting a desperate and only half-successful battle to stay current with their ex-offender caseloads, a task ironically--and significantly--complicated by the law itself: Many parolees subject to sex-offender registry supervision keep more or less permanently on the move precisely to avoid the intense public scorn and embarrassment that registration necessarily entails.

And then, even more important, there are the lawsuits, which have kept countless Megan's Law programs bottled up in court, and enjoined from functioning in the first place, for years on end. Almost always, sex offender plaintiffs raise two basic constitutional complaints, both of which are squarely presented in the Alaska and Connecticut cases now before the Supreme Court.

To some extent at least, nearly every state now applies its Megan's Law retroactively. In other words: Certain people convicted of certain crimes committed even before the registry statute was enacted are nevertheless required to comply with its terms. Which not infrequently means that they must assist in their own public identification as sex offenders, sometimes for the rest of their lives. Two Alaskan gentlemen named "John Doe," each of them a former prison inmate sentenced in the early 1980s for first degree sexual abuse of his minor daughter, argue that their state's Megan's Law, adopted only in 1994, represents an after-the-fact additional punishment for crimes whose then-legally-authorized consequences they have already paid. Article I, Section 10 of the federal Constitution, they point out, bars any state from passing such an "ex post facto" statute; Megan's Laws like the one in Alaska must therefore fall.

This is not quite so neat a constitutional talking point as memories of fifth-grade civics class might lead you to believe. The ex post facto clause implicates only legislative enactments of a punitive, criminal character. States may pass retroactively applicable laws for non-punitive, civil purposes like public safety, even when the operation of those laws is triggered exclusively by past criminal activity, without offending the ex post facto clause one bit. In April of last year, the Alaska John Does managed to persuade the 9th U.S. Circuit Court of Appeals that Juneau's version of Megan's Law, though explicitly designed simply to provide the public with future protection against sexual predators, is effectively, and thus unconstitutionally, a vindictive, look-back punishment for ancient misdeeds. This, first, because the statute imposes "drastic" and "onerous" liberty restrictions on the Does--purportedly requiring them to make in-person police station appearances to verify their residential and business addresses, four times a year until they die. And, second, because the law's reach is "exceedingly broad," sweeping these two men into its crude "sex offender" designation, on the basis of a little father-daughter incest business many moons ago, without ever giving the designees an opportunity to demonstrate that they no longer pose a threat to anybody.

On appeal to the Supreme Court, Alaska points out that the 9th Circuit has made a rather astonishing error of statutory interpretation: No one, in fact, is ever required to make in-person address verifications under the challenged law. What's more, even if such a requirement did exist, categorical civil regulations of ex-felons are routine and ubiquitous in our federal and state code books, and the Supreme Court has never used the ex post facto clause to strike down a single one of them. Which is why, all across the country, paroled murderers are ineligible for gun permits as a class--and nobody thinks that some panel of psychiatrists should have a case-by-case say about whether the rule is fair.