This article is modified from an AP article that was previously published in USA today.
But sex offenders say they have rights, too. I’d argue it’s wrong to lump those guilty of minor offenses in with the worst offenders. Some are challenging the laws.
“People think that imposing these draconian retroactive laws are a way to keep their children safe,” said an American Civil Liberties Union of Nevada lawyer who represented 27 unnamed plaintiffs in a federal civil rights lawsuit and wants to block two sex-offender laws from taking effect in Nevada.
The laws, which they [ACLU] say are unconstitutional, were tailored to meet standards under the Adam Walsh Child Protection and Safety Act, which President Bush signed in 2006.
Nevada was among the first to pass the laws that would allow the state to post on the Internet 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.
The measures mix serious sex offenders with people convicted of misdemeanors such as public nudity and could subject them to violence from neighbors who see their names and photos.
According to the ACLU, “These laws don’t provide public safety, they only demonize a particular group.” But Binu Palal, the deputy state attorney general arguing the case for Nevada, said the law is constitutional and U.S. Supreme Court rulings from 2002 limit sex offenders’ ability to block the release information about their crimes.
“The system is based on the fact of conviction,” Palal said. “Informing the public of a true fact is not considered punishment.”
U.S. District Court Judge James Mahan heard arguments Sept. 10, 2007 in the Nevada lawsuit. He was asked to make permanent a temporary ban he imposed that stopped the law from taking effect July 1, 2007.
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. He also ruled that law could not be applied retroactively because among other things it represented double jeopardy, which is prohibited by the Constitution. However the 9th Circuit Court of Appeals disagreed and ruled that the 2006 sex offender law CAN be applied retroactively.
The court, in a decision written by Judge Stephen Trott, said this law was enacted to protect the public and was not a second punishment. (But I believe it is CLEARLY punishment.) Although the law was placed in the criminal section of Nevada statutes, the court said the law does “not constitute retroactive punishment in violation of the Ex Post Facto Clause or Double Jeopardy Clause.”
Once posted, the judge said, “the cat’s out of the bag.” His ruling has been closely watched in states that have adopted or are considering 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.”
The federal law set 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. I believe 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,” but even bad people have rights according to the Constitution.
The plaintiffs in the Nevada lawsuit include a construction company manager, a tow truck operator and a grandfather, according to court documents. 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 claimed 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 two million people. Cannito said he has no sympathy for offenders who would have to check in more frequently with probation officers, or might be forced to move away from areas 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.” Offenders complain that reclassification is unfair.
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 said that during an acrimonious divorce his ex-wife accused him of sexually assaulting 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 five years probation.
Unfortunately in many contested divorces involving young children, these types of allegations are often made. Because of the draconian penalties for sex crimes involving minors (including life imprisonment), many people will plead guilty to a lesser charge while maintaining their innocence.
“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.”
He 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.”
Legislators may revisit this law in order to be sure that the penalties in place are appropriate for all offenders; but while this is pending, those charged with sex offenses are facing severe penalties.
With such severe consequences at risk, you need to take these matters extremely seriously. A conviction will change your
entire life, and the impact will last for many years after you have completed any prison time that you receive, even if you have had no problems for over 25 years and didn’t need to register in another state where the crime was committed.
I’m filing challenges to the law and its enforcement as it relates to several of my clients. We definitely haven’t heard the latest on this issue. — Mace
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Mace J. Yampolsky is a Board Certified Criminal Law Specialist, 625 South Sixth St., Las Vegas, NV 89101; He can be reached at: Phone 702-385-9777 or fax 702-385-300. His website is located at: www.macelaw.com.