Moving to the Internet, Megan’s laws lists find trouble

From the Spring 2002 issue of The News Media & The Law, page 12.

Tommy Walls was convicted in South Carolina in 1973 on the charge of assault with intent to ravish and sentenced to three years imprisonment.

About 25 years later, while he was serving time on an unrelated conviction, the Department of Corrections told him that he was required to register as a sex offender under state law for the 1973 conviction.

Walls did not register. He was convicted for failing to register and was sentenced to 90 days in prison. Walls sued, claiming that the registry act violated the ex post facto clause of the constitution by creating an additional punishment after the crime was committed.

A string of similar cases across the United States challenges the constitutionality of Megan’s Laws, the name given to statutes requiring sex offenders to register with the police department, which then notifies communities where the offenders live.

In some cases, the creation of the registries affects offenders convicted long before the laws were enacted. Convicted sex offenders contend the registry violates their due process rights because the laws are enacted after a crime and retroactively alters or increases the punishment for that crime.

Most courts, including the South Carolina Supreme Court in reviewing State v. Walls on Jan. 14, generally find that the law is not so penal in effect or intent that it violates the ex post facto clauses of state and federal constitutions. The court’s reasoning is that the state legislatures explicitly state their intent is to protect the public from repeat offenders and to help law enforcement apprehend repeat offenders, not to violate the constitutional rights of the offenders.

However, state appellate and high courts in Ohio, Maine, Delaware and Pennsylvania have held that Megan’s Law registration requirements create ex post facto laws.

Recently, a new issue has arisen in the attacks against Megan’s Laws: whether the availability of the sex offender registry on the Internet is constitutional. Unlike the court in the Walls case, courts seem more willing to find constitutional violations when the sex offender registry is posted on the Internet.

In New Jersey, a federal judge ruled on Dec. 6 that unrestricted access to a sex offender’s home address on the Internet unconstitutionally violates privacy.

In that case, several convicted sex offenders who were required to register under New Jersey law sued because recent amendments would allow the registry to be posted on the Internet and make it accessible to the public.

The judge found that the original registration requirement under Megan’s Law was not an unconstitutional violation of the sex offenders’ rights, so long as the intent for the law was not penal in nature and the disclosure of the registry was limited to people who had a statutorily defined need for the information. The judge held that the accessibility of the registry on the Internet for the public at large to see it violated the sex offenders’ privacy. (A.A. et al. v. State of New Jersey)

The Hawaii Supreme Court struck down all of the notification provisions of its Megan’s Law statute on Nov. 21 because it posted the names, street addresses and zip codes of offenders. The Internet registry also provided a search engine that allowed users to retrieve a list of sex offenders in the vicinity by merely typing a street address or zip code.

The case arose when Eto Bani pleaded no contest to charges of sexual assault in the fourth degree for grabbing the buttocks of a 17-year-old girl. Under Megan’s Law, he was required to register. The law also required the state’s criminal justice data center to make the information available for release over the Internet.

The state Supreme Court found that the disclosure requirements of the law were a violation of Bani’s due process rights since he was not given a hearing where he might be able to defend himself and show that he does not pose a danger to society. The law was struck down and all of the registry information was promptly removed from the Web sites. The center now charges $15 per criminal history request, even if the request is made by a member of the media. (State v. Bani)

More than 30 states make their sex offender registries accessible on the Internet. The most recent to join is Maryland, whose registry went on the Internet on April 22. — MM