The children's cases are the heartbreakers. It is impossible to read about the rape and murder of 7-year-old Megan, and 6-year-old Cassandra, and 5-year-old Samantha without a sense of wild anger and revulsion. The law knows how to deal with their killers — if the killers can be found and brought to trial.

It is the non-fatal cases of sexual abuse that are so very troubling. How should the law deal with offenders after they have served their time? The Supreme Court will hear typical cases from Connecticut and Alaska during the term that begins in October. A case from New Jersey is pending on a petition for review. They are the toughest cases on the docket.

By way of background: Eight years ago Congress enacted a short law with a long name, the Jacob Westerling Crimes Against Children and Sexually Violent Offender Registration Act of 1994. The law drew its name from a boy who was abducted near St. Joseph, Minn. It rewards states for creating programs for the public registration of sexual offenders. All 50 states now have such programs in place.

The laws vary widely. Roughly half the states base their registries wholly on a record of offenses. The other half rely on offenses of record, plus an individualized "risk assessment" of the likelihood of future offenses. Some states closely limit public disclosure. Others make it easy to locate offenders. A key question goes to the intent and effect of registration. Are registration requirements punitive? Or are they merely ministerial, in a class with records of motor vehicle violations?

Connecticut's law is typical. A person convicted of a sexual offense, upon release, must provide the state with his address, fingerprints, picture and a blood sample. The data must be kept current for 10 years. Those convicted of "sexually violent offenses" are required to maintain their registration for life. The records are public records, available on an Internet Web site or by direct request.

"John Doe" was convicted in Connecticut of a sexually violent offense. Released from prison, he brought suit in U.S. District Court, complaining that the registration law deprives him of his constitutionally protected "liberty." Public disclosure of his record "stigmatizes" and defames him. The District Court agreed, and the Court of Appeals for the 2nd Circuit affirmed.

The Alaska case comes to the high court from a different direction. In 1985, a different "John Doe" was sentenced to 12 years in prison for sexually abusing his 9-year-old daughter. Upon his release in 1990, the trial court determined that he had been successfully rehabilitated, with "a very low risk of re-offending." A third "John Doe" was sentenced in Alaska in 1984 to eight years in prison for sexual abuse of a 14-year-old child. He was released in 1990 after completing a two-year treatment program. Both men challenged Alaska's registration act of 1994.

Alaska's law is among the toughest in the nation. In aggravated cases it may require offenders to register at their local police stations four times a year for life. Those convicted of lesser offenses must register in person annually for 15 years. A panel of the 9th Circuit, speaking through Judge Stephen Reinhardt, found that the effects of the act were "unquestionably punitive." The onerous registration requirements were not in place at the time of the offenses. Thus they amounted to ex post facto punishment, forbidden under Article I of the Constitution.

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These are tough calls. Judge Reinhardt is a notorious weep-easy whose heart bleeds for the offenders. He pities poor John Doe — either John Doe — "compelled forever to suffer the unremitting social obloquy and ostracism that would accompany his being publicly labeled a sex offender on Alaska's worldwide Internet Web site."

I can't work up much compassion for a man who sexually abuses a little girl — or a little boy, for that matter. These people are sick. In typical cases they have been tried, found guilty and sentenced to prison. Now they are free. In the familiar phrase, they have paid their debt to society. Yet many offenders suffer from a sickness for which there is no cure. They are likely to strike again. How do we protect the innocent? By compulsory registration? Yes, but what kind of registration? The stigma of lifelong public registration comes perilously close to a bill of attainder, which the Constitution forbids.

If John Doe moves into a house next door to my granddaughter, I want to know about it. John has his rights. Judge Reinhardt will protect him. Who will protect my child?


Universal Press Syndicate

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