NE- High court rules on rapist parole

5-1-2009 Nebraska:

LINCOLN — Accused rapists are entitled to a jury trial to determine whether they have committed a crime that warrants parole supervision for the rest of their lives, the Nebraska Supreme Court ruled Friday.

The high court, in a unanimous opinion written by Judge Kenneth Stephan, ruled that the Nebraska Legislature increased the punishment for certain sex offenders when it passed a 2006 law requiring lifetime parole supervision for those convicted of raping a child younger than 12 or of raping someone under threat of serious violence.

That means a judge cannot require lifetime parole supervision unless a jury has found the accused guilty of an aggravated offense.

The Supreme Court nonetheless upheld the first-degree sexual assault conviction of Abram L. Payan, 24, in the 2007 sexual assault of a 14-year-old girl. Judge Steven Burns sentenced Payan to 18 to 25 years in prison and ruled that he had committed an aggravated offense calling for lifetime parole supervision.

Although Payan's jury had not found specifically that the crime involved the "threat of serious violence," witnesses said the girl was raped at knifepoint.

"On this record, any rational jury which convicted Payan of the sexual assault would have also concluded that it was committed through the use of force or the threat of serious violence," Stephan wrote in concluding that a new trial was unnecessary.

Friday's decision contrasts with a 2004 ruling by the court that lifetime sex offender registration is a civil regulation designed to protect the public, not a punishment. Registration requires those convicted of certain sexual offenses to report their place of residence to their county sheriff. The Supreme Court has said the registration law is intended to help prevent recidivism and to help law enforcement solve future sex crimes.

Lifetime parole supervision, however, requires more constitutional safeguards than lifetime sex offender registration, the high court determined.

Those under parole supervision not only must regularly report to a parole officer, they also can be restricted on where they live and work and on their choices of friends and leisure activities. They can be required to submit to medical or psychiatric treatment and be forced to take drug or alcohol tests or a lie detector examination. If they don't comply, they can be returned to prison, the court observed.

"The term 'parole' has a distinctively penal connotation," Stephan wrote. ..News Source.. by LESLIE REED, WORLD-HERALD BUREAU