New sex offender laws challenged in Nevada
August 16, 2008
LAS VEGAS – Eager to protect children from sexual predators, Nevada and other states across the nation are adopting laws that publicize the names of offenders on the Internet.
But sex offenders say they have rights, too, and they argue authorities are wrong to lump those guilty of minor offenses in with the worst offenders.
“People think that imposing these Draconian retroactive laws are a way to keep their children safe,” said Margaret McLetchie, an American Civil Liberties Union of Nevada lawyer.
“These laws don’t provide public safety, they only demonize a particular group,” she said.
McLetchie and Robert Langford, who represent 27 unnamed plaintiffs in a federal civil rights lawsuit, want to block two sex offender laws from taking effect in Nevada.
The laws, which they say are unconstitutional, were tailored to meet standards under the Adam Walsh Child Protection and Safety Act, which President Bush signed in 2006.
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Implementation of similar laws has also been challenged in some other states, including Florida and Ohio. Texas lawmakers criticized the federal measure as an unfunded mandate. Vermont legislators also worried about how much it would cost.
Nevada was among the first to pass the laws that would allow the state to post the names, photos, home and work addresses and vehicle descriptions of offenders who’ve served probation or prison sentences on convictions as far back as 1956.
McLetchie, who said the measures put top-level offenders together with low-level offenders convicted of misdemeanor offenses such as public nudity, could subject them to violence from neighbors who see their names and photos posted on the Internet.
But Binu Palal, the deputy state attorney general arguing the case for Nevada, said the law is constitutional and the legal issue is simple.
“The key is whether the Legislature has the right to inform the public of sex offenders living in the community,” he said. “To protect the public.”
Palal pointed to U.S. Supreme Court rulings from 2002 that he said limit sex offenders’ ability to block the release information about their crimes.
“The system is based on the fact of conviction,” Palal said. “The intent of the Legislature was not to provide punishment, but to provide a civil remedial action.
“Informing the public of a true fact is not considered punishment,” he said.
U.S. District Court Judge James Mahan is scheduled to hear arguments Sept. 10 in Las Vegas in the lawsuit, which names state Attorney General Catherine Cortez Masto and top state law enforcers as defendants. He is being asked to make permanent a temporary ban he imposed June 30 to stop the law from taking effect July 1.
Mahan has expressed concerns that if Nevada posted its list of 4,941 people convicted of sex crimes since 1956, there would be no way to restore their privacy if the law was later found to be flawed.
Once posted, the judge said, “the cat’s out of the bag.”
A ruling is expected to be watched closely states that have or are considering adopting provisions of the Adam Walsh Act, named for a 6-year-old Florida boy abducted and killed in 1981. He was the son of John Walsh, star of television’s “America’s Most Wanted.”
“We’ve objected since it was first introduced in the Legislature,” said Amy Borror, spokeswoman for the Ohio public defender’s office in Columbus. “We believe it’s unconstitutional when it’s applied retroactively. Even going forward, it’s bad policy.”
Borror noted similarities between the Ohio and Nevada laws, and said officials in Ohio were watching the Nevada case with interest.
The Ohio registry went into effect Jan. 1 despite challenges on grounds that it punished offenders twice, that the Legislature overstepped separation of powers lines by deciding sex offender classifications, that it broke plea deal contracts between offenders and prosecutors, and that the mandate from Congress violated the state’s rights.
“We used to have a system where a judge made a decision about an offender’s risk to re-offend,” Borror said. “Now it’s based only on the offense that they’re convicted of, not on any future risk.”
Nevada Gov. Jim Gibbons, who endorsed the Adam Walsh Act as a congressman in 2005, expressed surprise the new laws encountered resistance days before they were to go into effect.
“Based on the unanimous passage of this legislation through both chambers of the Nevada Legislature, it would be hard to assume anyone foresaw the constitutional challenges the law is currently facing,” Gibbons spokesman Ben Kieckhefer said this week.
“Still, Governor Gibbons would much rather sign aggressive laws protecting the people of Nevada from sexual predators than wait to see how other states handle federal legislation and see whether the courts agree with it,” Kieckhefer said.
The federal law sets a July 2009 deadline for enactment, and threatens states with the loss of federal grant money if they fail to adopt it. In Nevada, officials told lawmakers the state stood to lose $300,000 a year if they failed to adopt the law.
Langford said he believed Nevada lawmakers knew the law would change the lives of convicted offenders, but didn’t consider the breadth of the measures or the increased costs of enforcing them.
“Nobody wants to say they’re for sex offenders,” Langford said. “Everybody wants to be pro law enforcement.”
The plaintiffs in the lawsuit, all male, live in cities throughout Nevada, according to court documents. They include a construction company manager, a tow truck operator, a grandfather. They are not identified by name.
Most say in court documents that they served sentences ranging from probation to prison time in plea agreements that predated passage of laws redefining a sex offender.
The plaintiffs claim the law is broad enough now to apply to a wide range of offenses ranging from child molestation to rape to theft of a pornographic magazine from a store.
Police Capt. Vincent Cannito, commander of the Las Vegas police sex crimes unit, said reclassification added about 1,800 people to a list of 2,200 offenders in Las Vegas and surrounding Clark County, home to about 2 million people.
Cannito said he had no sympathy for offenders who would have to check in more frequently with probation officers, or might be forced to move away from living near schools or parks.
“Remember, it’s the offender who decided to go out and commit the crime that they did,” Cannito said. “This increases the standards and raises the level of accountability of those individuals who have been convicted of sex crimes, and it raises the ability of law enforcement to further protect the community.”
Langford, McLetchie and their clients argue reclassification is unfair because it categorizes offenders based on their offense instead of individual evaluations.
One plaintiff, identified as Doe 2 in court documents, said neither he nor his attorney at the time understood that lifetime supervision would apply after he pleaded guilty in 2001 to a sex offense, or that he would continue to be banned from going to parks or schools.
He blamed his ex-wife for allegations during an acrimonious divorce that he sexually assaulted her 14-year-old daughter. He faced five felony charges but pleaded guilty to one count of attempted lewdness with a minor under 14, and was sentenced to 5 years probation.
“I never touched my stepdaughter or any other child inappropriately,” he said in the affidavit, which says he took a plea deal to spare his children the embarrassment of a trial. “I was not told that there would be any restrictions on me whatsoever after I was done with probation.”
The 45-year-old now lives with his second wife, his adult adopted stepdaughter, his 15-year-old son and the couple’s 5-year-old son in Las Vegas. He said he fears for his family’s safety and his job if he is identified publicly as a sex offender.
“I have done everything I can to comply with the law, and be a good citizen,” he says in the affidavit. “I would never hurt anyone. But none of that matters now.”