NV- PERMANENT INJUNCTION: Offender statute restricted

9-11-2008 Nevada:

U.S. judge rules law can't be applied retroactively

A federal judge issued a permanent injunction Wednesday that bars the state of Nevada from applying its new sex offender law retroactively.

U.S. District Judge James Mahan said the law, as applied to 12 sex offenders represented by the American Civil Liberties Union of Nevada, is unconstitutional.

"Many of the plaintiffs here were convicted years ago and have paid their debt to society," the judge said.

He said the law, which would change the way Nevada classifies sex offenders, would subject the plaintiffs to additional penalties -- "not because of anything that they have done."

Mahan likened that scenario to the Legislature passing a law that says anyone ever convicted of burglary must now serve five more years in prison, even though they have been law-abiding citizens since their release from prison. That would be neither fair nor constitutional, he said.

The judge stressed that his ruling would have no effect on existing laws that require the registration of pedophiles or laws that restrict their movement or housing.

Deputy Attorney General Binu Palal said he did not know whether his office would appeal the decision.

"We respect the ruling of the court, and we will review our options after we see the order," he said.

Mahan declined to rule on whether the law may be applied to those convicted of sex offenses in the future. That issue is pending in state court.

District Judge David Wall granted a preliminary injunction in June that prevented the law from taking effect as scheduled on July 1. Mahan issued a preliminary injunction a few days after Wall's ruling.

The new law changed how the state categorizes sex offenders. Instead of categorizing them by their risk of re-offending, it categorized them by the crime they committed.

It would have increased the number of Tier 3 sex offenders in Nevada from about 160 to more than 2,500. Tier 3 sex offenders have been convicted of the most serious offenses, including sexual assault and crimes against children.

Tier 3 offenders must register with authorities every 90 days, submit to fingerprinting and, in some cases, wear GPS monitoring devices. Their personal information, including their photos, is posted on the state's sex offender Web sites.

During Wednesday's hearing, Palal disputed Mahan's contention that the law's notification and registration requirements constitute punishment.

"These are not additional criminal penalties," Palal argued.

The Legislature passed the law in 2007 to bring Nevada in line with the federal Adam Walsh Act, signed by President Bush in 2006. The intent was to push all states to categorize sex offenders the same way.

Backers of both the Nevada and federal legislation contend sex offenders will have a harder time evading detection once all states are on board.

Maggie McLetchie, staff attorney for the ACLU of Nevada, said the federal law "is falling apart at its seams." She said most states have not enacted Adam Walsh Act legislation.

Mahan said Nevada's new law violated a constitutional ban on "ex post facto," or retroactive, laws. He also said it violated due process clauses of the Fifth and 14th amendments, as well as the double jeopardy clause of the Fifth Amendment.

"We're thrilled by the ruling," McLetchie said. "We know that it's a brave thing to do to make a decision that affirms the rights of sex offenders. The ACLU strongly believes that the Constitution applies to everyone, including convicted sex offenders."

However, McLetchie said the case is not about the rights of sex offenders. "It's about the limits on the power of government," she said.

One of the plaintiffs in the federal case, a Las Vegas man identified only as "Doe 2," pleaded guilty in 2001 to attempted lewdness with a minor under 14. The felony conviction resulted in five years of probation and lifetime supervision.

In an interview Wednesday, the man claimed innocence.

"I was accused of something that I didn't do, because my 'ex' was trying to take custody of my son," he said.

He said he has had the same construction job for 28 years, has remarried and has three children. Before the new law was passed, he was placed in the Tier 1 category after he was assessed as a low risk for re-offending.

After the new law was passed, his probation officer told him he would be reclassified as a Tier 3 offender. That meant his neighbors would be notified about his conviction.

"I feared for my family's well-being," he said.

He also worried that the new classification would prohibit him from picking up his children at school. Tier 3 offenders may not go within 500 feet of schools or parks. And the man's boss told him he might lose his job.

When McLetchie told Doe 2 about Mahan's ruling Wednesday, he said, he broke down with joy.

"I've been carrying this on my shoulders for quite some time," he said.

Gary Peck, executive director of the ACLU of Nevada, said Mahan's ruling underscores the need for the Legislature "to pay more careful attention" to what the organization's representatives have to say when advocating for constitutionally sound laws.

"It would have been nice had the AG's office been willing to engage in more constructive dialogue with us throughout the course of this litigation," he said.

McLetchie said the 2009 Legislature will get "another crack at the apple."

"In the ACLU's view, the existing laws worked because they really did focus in on public safety and risk to society," she said.

Attorney Robert Langford, who worked on the case with the ACLU, said Mahan "may have just saved the taxpayers of the state of Nevada several million dollars to institute the bizarre supervision scheme anticipated by the new statutes."

"That was a fiscal impact not considered by the Legislature and in my opinion that is what has kept most other states from adopting this wickedly Draconian statutory scheme imposed by the federal government," he said. ..News Source.. by Contact reporter Carri Geer Thevenot at cgeer@reviewjournal.com or 702-383-0264.



ACLU of NV Wins Permanent Injunction Against Retroactive Enforcement of New Sex Offender Laws

9-10-2008 Nevada:

On September 10, 2008, the ACLU of Nevada won a permanent injunction against the retroactive enforcement of A.B. 579 and S.B. 471, Nevada's new sex offender laws. Judge Mahan held that the retroactive application of the laws violated the U.S. Constitution, including the Due Process and Ex Post Facto clauses, making clear that the Constitution applies to all.

The new laws, contained in SB471 and AB579, would have drastically changed how Nevada deals with sex offenders. Regardless of whether their crimes even involved children, sex offenders who committed even misdemeanors with any sexual element since July 1, 1956 would have fallen within the purview of registration and some notification provisions. For example, someone caught masturbating in their truck in 1956 could suddenly be classified as a dangerous sex offender subject to registration and notification. One of the ACLU's clients, a grandfather and solid member of his community, was about to be treated like a dangerous pedophile for committing statutory rape at age 17 back in 1960.

Many, many such rehabilitated, low risk offenders whom the state of Nevada has already determined to be unlikely to re-offend would have retroactively become Tier 3 – "high risk" – offenders based solely on the crime committed. Those offenders would also have been subject to widespread community notification, which in turn would have meant that they and their families faced social ostracism, losing their jobs, and even possible vigilante violence. Further, Parole and Probation was also imposing severe movement and residency restrictions retroactively on some offenders, which meant some people would have had to move and sell their homes.

The ACLU does not in any way oppose tough sex offender laws. In fact, by drawing attention away from offenders who are a known high risk – some of whom would have been reclassified as low risk offenders – SB471 and AB579's changes would have jeopardized public safety. In addition, by retroactively imposing terms on offenders who were known to be low risk and giving people no means to challenge the laws even if they were misapplied, the laws would have violated numerous constitutional provisions. Further, the laws are so confusing that the Attorney General's office itself has repeatedly changed its position on the laws. Nobody seemed to understand what they mean and how they were supposed to be applied.

This case was not about "the rights of sex offenders," but instead about the limits on the power of government to impose sweeping retroactive punishment. The ACLU was very concerned that if the Nevada legislature were allowed to impose laws retroactively in this context, it would pass other laws that take effect retroactively and violate the Constitution.

The ACLU of Nevada cannot provide any individual advice or other assistance regarding the sex offender laws, and the information in this post does not constitute legal advice of any kind. If you have any questions about whether any sex offender registration or other laws apply to you, please contact an attorney.
..Source.. by Phil Hooper