Nothing in recent history has compelled such emotional debate and constitutional controversy as the so-called Megan's Law. These laws require registration and community notification when a convicted sex offender moves into a neighborhood. The law varies in degrees of notification from state to state. Designed to protect children from manipulative and violent sex offenders, these laws have become involved in a controversy concerning possible constitutional rights violations.
Most of the legislation requiring community notification has been the result of the highly publicized murder of 7-year old Megan Kanka in 1994. Megan was murdered by her neighbor, Jesse Timmendequas, a twice convicted sex offender. Timmendequas, now on death row in New Jersey, admitted to luring the child to his house by telling her he had a puppy. He then raped and suffocated her. Megan's parents were shocked to learn that Timmendequas and his two roommates were released sex offenders. This spearheaded their national campaign to require the judicial system to notify communities of a dangerous sex offender's release and place of residence within a community. Since Megan's death, 49 states have adopted registration statues (Glassner, 1997).
Sex offenders affected by Megan's Law have filed court actions stating that this legislation is unconstitutional. In specific, they believe that the registration and community notification laws violate the due process, double jeopardy, privacy, cruel and unusual punishment, and ex-post facto issue in the U.S. Constitution.
In May of 1997, President Clinton signed "The Jacob Wetterling Crimes Against Children and Violent Offender Registration Act," a national form of Megan's Law. This act requires states to enact legislation requiring sex offender registration and notification in order to qualify for federal anti-crime funding.
Compelling Arguments For Legislation
Proponents of community notification base their stand on the high recidivism rates and low rehabilitation successes for sexual offenders. The National Center for Missing and Exploited Children (NCMEC) publishes an informational manual titled Child Molesters Who Abduct. The information shows that child molesters have a tendency to recidivate. Three of the five case studies contained in the manual show that the offenders committed sexual offenses against 30 or more children after the arrest for the first sexual offense against a child. Each one of the five offenders studied showed an increase in frequent and violence of offense after being arrested and released back into the public. Those who favor community notification base their reasoning on protecting children from such threats.
The current legislation, although directed towards protecting innocent children, includes sexually violent predators who violate adults as well. In the Encyclopedia of Serial Killers, 53 or the 86 (61 percent) killers chronicled killed their victims during, after and sometimes before sex with them (Blundell, 1996). Many of these killers had already been arrested on various sexual and violent crimes and graduated to murder after their release.
John Wayne Gacy is an example of the usefulness of community notification. In a period of six years he successfully carried out the rape and murders of 33 young males. Prior to theses crimes, Gacy had served only 18 months of a 10-year sentence after being found guilty of a vicious sexual assault on a young male in 1968.
Another example is that of Henry Lee Lucas. Lucas had been convicted and sentenced to 40 years in 1960 for raping and murdering his own mother. He was taken to a mental institution and released on parole in 1970. His murderous career then began to take off. Investigators have numbered his victims at approximately 150 women and children.
Henry Lee Lucas and John Wayne Gacy are extreme examples of sexually violent predators. Their crimes have been recorded in the annals of history and their names are recognizable. Others, who have not graduated to murdering their victims, remain anonymous in society. Again referring to the NCMEC's case studies, Dwayne Lee Scott (a fictitious name) was given a five-year suspended sentence after being convicted for sexually abusing and sodomizing, a 10-year-old boy he met while coaching Little League. After being paroled for "good behavior" he continued his conquests which resulted in his arrest and admission to sexually abusing more than 50 children (NCMEC, 1995).
These are some examples of the compelling reasoning behind the sex offender registration and community notification legislation. If the judicial system and psychiatrists are not willing to listen to these offenders, Megan's Law advocates feel that they must be informed of their whereabouts to protect themselves and especially their children.
Opponents Raise Issues
Opponents of sex offender registration and community notification laws have fought this type of legislation on the basis of many constitutional issues. In 1997 the U.S. court of Appeals, Third Circuit, upheld New Jersey's "Megan's Law" in E.B. vs. Verniero. In 1974, the plaintiff received a 33-year sentence after pleading guiltily to three counts of sexual abuse against young boys. He was paroled in 1989 and resides in New Jersey. In October 1995, he was advised that he was classified as a tier-three sex offender and therefore community notification would take place. He fought the notification and a hearing was held in a New Jersey Superior Court. The Superior court found that his classification was appropriate and permitted notification. E.B. then filed a federal appeal based on violations of his rights concerning the Fourth Amendment of the Constitution.
The Court of Appeals addressed the issues of ex-post facto, double jeopardy and due process. They agreed with the previous U.S. Supreme Court's decision in Kansas vs. Hendricks which concluded that ex-post facto and double jeopardy violations are not possible because they refer to punishment. (In Kansas vs. Hendricks the issue was civil commitment of Hendricks, who was deemed to be a "sexually violent predator" after the completion of his sentence." Community notification was also deemed non-penal. The purpose of the legislation is regulatory and not punitive.
Another concern of sex offenders who must register is that it subjects them to harassment and vigilantism, in essence branding the offender with a "scarlet letter." The ACLU (American civil Liberties Union) has joined in fighting the community notification legislation. They object mainly to the retroactive measures of the legislation and the ensnarement of people who do not pose a threat to society (ACLU, 1996). According to their news release titles, "Scarlett Letter" in October 1996, the legislation is ensnaring "people who did not commit a crime against another person, including mooners, people caught urinating in public, and gay and bisexual men convicted of certain crimes related to cruising for sexual partners in public spaces." (ACLU, 1996, p.2) They report that his involves the Massachusetts Sex Offender Registration Program. The retroactive measures, they say, create double jeopardy. As reprehensible as they are, sexual offenders have the same constitutional rights as the rest of us, Megan's Law opponents point out.
Public opinion seems to indicate support for Megan's Law and other sexually violent predator laws. Sexual offenses, especially against children, bring out emotion in the American public for whom it only seems right to approve of such laws. It's obviously too early in the debate to decide the outcome. Although New Jersey's version of Megan's Law has survived judicial review, not all legislation has been tailored as carefully. The trend in the 1990s is to value the rights of citizens, more than the rights of "sexually violent predators."
However, the Constitution must be upheld and there are ways to write legislation that does not infringe on individual rights, without due process.
In the near future, various state legislation will be fought on constitutional grounds. The laws that are not clear, do not provide for appeals by the registrants and are overboard, will be overturned. Laws that provide due process for the offenders to contest registration and allow for notification only in cases of proven public danger will be substainded.
Jane M. Tucker is a police officer with the Lower Merion Township Police Department in Ardmore, Pa. She is currently working on a master's degree in Criminal justice at West Chester University. Tucker, a freelance writer with several books in the works, can be contacted for more information through http://:members.aol.com/jtucker568/janeswebpage.html or at [email protected].