DE- Ruling limits sex offender registry

11-12-2009 Delaware:

by SEAN O'SULLIVAN • The News Journal

Court says Minner pardon restored all of man's civil rights

For the second time this year, the Delaware Supreme Court has found that a person legally can be removed from the state's sex offender registry -- implicitly finding that the registry is not a permanent life sentence without exception and that the registry statute does not overpower all other state laws.

In this latest case, the justices ruled that a full and unconditional pardon by former Gov. Ruth Ann Minner of a man convicted at 19 of having sex with a girl who was under 16, meant he no longer had to register as a Tier II sex offender.

The ruling was praised by the Delaware American Civil Liberties Union as a needed exception to the registry, but victim advocate Dana Harrington Conner expressed concern about the creation of another way off the state's list of sex offenders.

"There are exceptions to every rule. But when there is an exception, it can be abused. In this case, the abuse of an exception can have very serious ramifications," she said.

While the Delaware Attorney General's Office opposed removing Brian Heath from the offender registry, it signaled this week that it accepted the high court's decision and that Heath's removal did not threaten public safety.

Heath was convicted in 2000 of second-degree unlawful sexual contact for what attorney Charles M. Oberly III said was a consensual encounter between the then-19-year-old Heath and a 14-year-old girl.

Heath completed his probation, fulfilled his registration requirements and stayed out of trouble.

Oberly said Heath, who has since been married and has a child, could not obtain gainful employment and even had difficulty renting an apartment because he was listed on the sex offender registry.

"You would be better off being convicted of manslaughter than a sex offense to obtain a job [today]," Oberly said, adding that the job Heath was having trouble landing because of his status was as a truck driver.

Heath petitioned then-Gov. Minner for a pardon, which was granted in October 2008.

Prosecutors opposed Heath's removal from the registry, and a Kent County Superior Court judge agreed.

In the first case of its kind considered by the Delaware Supreme Court, the five justices unanimously ruled this month that a full pardon by the governor is designed to forgive an offense and restore a person's civil rights.

The court also noted that the pardon process is a rigorous one that includes a review for the "propensity for recidivism," and because that check determined Heath is no longer a threat to re-offend, there is no basis for keeping him on the sex offender list.

The justices also pointed out that the Delaware Attorney General's Office had a chance to object during the review process and did not do so, and the pardon board could have recommended, and governor could have granted, a conditional pardon, limiting the pardon's effect, but did not.

The court noted that the Heath decision was consistent with its ruling in May when it allowed two people who had been convicted of sex offenses when they were both less than 14 years old to be removed from the sex offender registry after a Family Court judge granted each of their requests to have their juvenile records expunged.

As in Heath's case, both argued that a listing on the registry had hindered their ability to get jobs, and in one appellant's case, go to school.

Jason Miller, a spokesman for Attorney General Beau Biden, said that while the state initially opposed Heath's request, "the court's decision clarifies the relationship between sex offender registry requirements and the scope of executive pardons. It allows for conditional pardons that would maintain the sex offender registration requirements in appropriate cases. We believe the court's ruling is consistent with protecting the public."

Conner, who also is a professor at Widener University School of Law in Brandywine Hundred, said there is "a lesson to be learned" from the decision.

She pointed out that there were a number of places where someone could have objected to Heath's pardon but did not. She said she could not speak to the specifics of the Heath case but said this should put state officials on notice about future pardon requests and their potential to affect the registry.

"My concern is with the process," she said, and that someone missed, or could miss in future, the opportunity to make an appropriate objection. "If we don't do our job, then someone will be removed [who shouldn't be]," she said, adding that the process should not be "pro forma."

At the same time, Conner said the two exceptions that the state Supreme Court has carved out represent a very small group -- people who receive unconditional gubernatorial pardons and people who receive Family Court permission to have their juvenile criminal records from before age 14 expunged. "The vast majority are going to remain on the registry indefinitely," she said.

Oberly said the process is not and was not "pro forma," noting that Minner granted few pardons.

He also said that while it was not raised in this case, there was the potential constitutional issue of the Legislature limiting a governor's power.

ACLU Delaware Executive Director Drewry Fennell, meanwhile, believes there should be more flexibility in allowing people to be removed from the list, not less.

She said one of the problems with the sex offender registry has been its "forever" nature. "There is no sense you can ever pay your debt to society and move forward after having changed," she said.

While state prosecutors argued that a listing on the registry was not a punishment -- but merely a record of a crime -- Fennell said the court clearly disagreed in this ruling, describing a mandatory listing as creating a "severe civil disability" for any person on the list.

"The sex offender registry is not just a means of keeping track of people, it is also a barrier to their reintegration into society, particularly for young people like Mr. Heath, who have been determined to not pose a threat to anyone," she said.

"Everyone who is on the registry should be evaluated at reasonable intervals, to determine whether or not they pose a public safety threat," she said.

Oberly said he did not think that the court's decision in Heath's case was a radical departure. "It was a common-sense determination," he said. ..Source..