Vt. Internet sex registry facing tweaks, challenges

2-8-2010 Vermont:

MONTPELIER – Coming amendments to a 2009 law that expanded the state's Internet sex-offender registry appear to have staved off at least one lawsuit challenging the new statute. However civil-rights advocates say it's only a matter of time before the broadened Web-based registry faces a more strenuous constitutional challenge.

Last year, as part of wide-ranging anti-sex-crimes bill sparked by the rape and murder of a young Vermont girl, lawmakers approved language that broadened the range of crimes for which convicts are placed on the Internet registry.

The statute has already more than tripled the number of names on the sex-offender registry, which shot up from fewer than 400 residents to more than 1,100 when the law took effect last October.

The House Judiciary Committee this week approved a technical correction to the 2009 legislation that inadvertently excluded residents who committed their crimes in out-of-state jurisdictions. Lawmakers have used the technical-corrections bill as an occasion to address complaints in a lawsuit that was filed last year on behalf of a man who was going to be affected by the law.

The law allows in-state convicts to appeal their inclusion on the expended registry, however lawmakers denied a similar appeals process to residents whose convictions came in another state. In a civil complaint filed last year, David Sleigh, a St. Johnsbury lawyer, said the law violated the due-process rights of his client, an unidentified man who was to be included under the new registry provisions.

"Now they're going to allow out-of-state people to contest being placed on the Internet, and that's what we were after," said Sleigh. "I think (legislators) reacted appropriately to our suggestion, and I think it will keep my client in effect keep from ever being posted in Internet registry."

Still, Sleigh said he has "larger disagreements" with the "scope and expanse" of the registry – disagreements he believes will spawn a separate lawsuit by someone else down the road.

The 2009 law applies to residents whose crimes were committed before the law was enacted. The retroactive application of new sanctions for an old conviction, Sleigh said, makes the law rife for constitutional challenge.

Appeals courts have upheld registry expansions in other states, ruling that inclusion on an Internet database does not constitute "punishment." But as the registry provisions become more onerous – Vermont offenders have their names and photos online and, come July, their addresses will be posted as well – courts may be compelled to revisit that decision.

"As registry requirements become more and more draconian and their publication more widespread, I think a court at some point is going to say this really does constitute additional punishment and is beyond the scope anyone could have foreseen when gave up their rights to a trial."

Allen Gilbert, executive director of the Vermont-American Civil Liberties Union, said he too anticipates a constitutional challenge to Vermont's new registry. Nearly 300 residents have appealed their inclusion on the new registry. Once those appeals are exhausted, Gilbert said, he imagines someone will challenge the law.

Gilbert said someone could challenge the law on the grounds that it breaches the terms of a plea bargain negotiated in exchange for a guilty plea. The new registry requirements, Gilbert said, effectively alter a binding contract without the consent of one party.

Someone might also challenge the law, Gilbert said, if the crime they committed in another state isn't actually a crime in Vermont.

"I have to believe it is only a matter of time before we see a challenge," Gilbert said.

Lawmakers themselves say they assume the law will see a constitutional challenge.

"All along I have assumed there would be legal challenges to the postings and of course I expect there to be a court case brought," said Rep. Bill Lippert, chairman of the House Judiciary Committee.

Lippert said lawmakers weighed the concerns of civil-rights advocates against the will of Vermonters and came down on the side of the people. Countless hours of testimony and a petition signed by more than 50,000 Vermonters, Lippert said, convinced him that lawmakers should proceed with the expanded registry.

I had personal misgivings about it," Lippert said. "But in the larger context of expectations of the public for information, and ease of access to that information, we felt it was the right decision to move ahead. There's a perception among the public that it provides an additional sense of safety." ..Source.. Peter Hirschfeld Vermont Press Bureau