Sometime this fall, the 3rd U.S. Circuit Court of Appeals will examine "Megan's law," a New Jersey statute that requires sex offenders to register with police and for communities to be alerted to their presence.
Such laws are sweeping the country, and questions are being asked about their constitutionality. Two courts already have spoken about Megan's law. Last February, federal district Judge Nicholas H. Politan struck it down as an unconstitutional ex post facto punishment. This is the case up for appeal. Then late last month, the New Jersey Supreme Court upheld the statute, declaring that its intent was not punitive: The law was no more than a regulatory effort to help citizens protect themselves.Megan's law was enacted last year after the murder of its namesake, a 7-year-old girl named Megan Kanka. A twice-convicted sex offender had moved into her quiet neighborhood in Hamilton, Mo. Her parents were unaware of his criminal history.
In time, the man made friends with the neighborhod children. He was thought to be kind and gentle, allowing them to play with his puppy. Then one day he raped Megan and strangled her.
Although Megan's law was not the first of its kind, the notoriety of the case made it a generic name for such statutes. Presently, about 40 states have laws requiring sexual offenders to register with police. Although the first of these was passed in 1947, virtually all of them have been adopted within the past five years. Most, such as Missouri's and Illinois', involve only registration. Some, like Megan's law, also require law enforcement agencies to share the information with the communities where the sex offenders live or with interested citizens.
The most extreme provision is in Oregon. There offenders considered most likely to commit another sex crime must place a poster in their front window, stating "Sex Offender Residence."
It is the likelihood of repeat crimes, a phenomenon known as recidivism, that animates all of these laws. Some proponents of registration and notification set the figure as high as 50 percent. About 25 percent of the sex offenders in federal prison have been in custody before for such crimes.
Literature cited in Politan's decision, however, suggests that sex-crime recidivism is no higher than for other categories of crime. "The Merck Manual of Diagnosis and Therapy" declares that "the recidivism rate for homosexual pedophilia is second only to exhibitionism and ranges from 13 percent to 28 percent of those apprehended - roughly twice the rate of heterosexual pedophilia."
Whatever the correct figure may be, the recidivism for crimes that surely are among a parent's worst nightmares justifies effort by the states to protect children from sexual predators. As always, the questions are effectiveness, appropriateness and respect for the Constitution.
At least two factors limit effectiveness - neither of them a compelling argument against such laws. First, the statutes are difficult to enforce. In Missouri, for example, as of early this year 2,500 people were on probation or parole for sex crimes. Less than 700 had registered.
Second, registration, and for that matter notification, does nothing to prevent sex offenders from operating out of their neighborhoods. In other words, without an accompanying emphasis on continuing treatment, the laws are unlikely to reduce recidivism. At best, they serve a NIMBY - Not In My Back Yard - purpose by encouraging sex offenders to move elsewhere.
Registration can involve different things, ranging from a simple signing-in with police to providing samples of DNA, which can be kept in a registry. When Missouri authorities were trying to solve the murders of Cassidy Senter and Angie Housman in 1993, it took several months merely to assemble a useful list of sex offenders in the area. Politan found no problem with registration.
The constitutional difficulties arise in the community notification requirements. Politan took note of - and thereby invited superior courts to examine - a variety of constitutional issues, including violations of the ex post facto clause, the prohibition against cruel and unusual punishment, rights of privacy, double jeopardy and the ban on bills of attainder.
Politan focused on the ex post facto clause, which was written into the Constitution to protect citizens from an onerous practice from British rule, namely, the passage of laws to punish conduct that was perfectly legal at the time it took place. In colonial times, the Parliament would adopt new definitions of treason or rewrite the rules of evidence and apply them retroactively. The protection against penalties assessed after the fact is one of our most cherished legal precepts.
Megan's law applied to thousands of sex offenders, whether already released or still in custody, who had been convicted before its enactment. The plaintiff in the suit had been found guilty of sodomy in 1975.
Politan likened notification to a public branding, one that was likely to result in the ostracizing of the subject, incite violence against him, reduce his job opportunities and make it more difficult for him to lead a normal life. This stigma, as well as the law's evident intent to deter future crime, led Politan to conclude that the purpose was punishment, not regu-la-tion. Accordingly, he ruled the law violated the ex post facto prohibition.
Sex crimes against children are particularly heinous offenses. At the same time, penalties imposed long after an offender has paid his "debt to society," are alien to our sense of justice.
Are civil rights in conflict here with another kind of right - our right as parents and citizens to protect the children? If a sex offender moves into the neighborhood, how much do we want to know? How much do we need to know? How much do we have a legal right to know?