Howell Testifies on D.C. Megan's Law Bill
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Howell Testifies on D.C. Megan's Law Bill

TESTIMONY ON BILL 13-350
"SEX OFFENDER REGISTRATION ACT OF 1999"

Delivered before the Committee on the Judiciary

OCTOBER 14, 1999

Councilmember Brazil, Members of the Committee, and Fellow Citizens:

My name is Craig Howell. I am President of the Gay and Lesbian Activists Alliance of Washington (GLAA), the oldest continuously active gay and lesbian rights group in the nation.

The proposed legislation before us today is a variation of bills enacted on an emergency and temporary basis in July. We in GLAA had only become aware a short time earlier of the possible adverse effects the original version of this legislation might have had on our community. We in GLAA, working in coalition with the local ACLU and with the Public Defenders Service, lobbied the Council furiously to salvage what we could out of a bad situation. While the amended bills passed in July represented an improvement over the original versions, fundamental problems remained for those bills, and for the permanent legislation before you now.

It is important to be very explicit about the motivations for our involvement. Prompted by the federal Wetterling Act enacted a few years ago, every state has passed its own version of what is popularly known as "Megan's Law." The underlying idea is to alert the community to the presence of dangerous and convicted sex offenders and pedophiles in their midst. Although the federal guidelines explicitly state that the state Megan's Laws need not and should not require the registration and public notification of everyone convicted of offenses with a sexual element, many states have gone far beyond these reasonable guidelines. In particular, a number of states have abused Megan's Law by cynically targeting gay men who pose absolutely no threat to public safety.

The need for our involvement in this issue has been dramatically highlighted by an apparent renewal of the ancient and dishonorable practice of entrapment of gay men at the P Street Beach by the Park Police. On the afternoon of September 1, a young gay immigrant was arrested by an undercover police officer on a charge of misdemeanor "sexual abuse." Specifically, the police said he grabbed the officer's crotch. But undercover cops routinely give all kinds of verbal and body-language signals to indicate their willingness for a sexual encounter in hopes of enticing just such behavior. There is no real victim in such cases. We thought the Park Police had scrapped such provocative tactics, but apparently not.

Had the arrested man been convicted on this charge, he would have been required to register as a sexual offender. Luckily for him, a plea bargain avoided this result. But why should gay men convicted under such circumstances be required to register at all?

GLAA's prime objective in considering Bill 13-350 is simple: to ensure that no one victimized by rampant officially-sanctioned homophobia here or anywhere else will be further victimized by being subjected to unnecessary registration and public notification procedures that should be limited to serious sexual offenders and pedophiles.

Some state versions of Megan's Law have established panels of experts to evaluate sexual offenders to decide the degree of risk (if any) they present to the public and therefore how they should be registered and what degree of public notification is in order. The first version enacted by the Council and signed by Marion Barry in 1996 established a similar system. But no panel of experts was ever appointed -- although the courts tried to make judgments about levels of notification for some convicted offenders anyway. Apparently, the District's leaders were put off by the budgetary costs of fully implementing the system set up by the 1996 law.

Bill 13-350 abolishes the panel of experts altogether. The bill's supporters contend the old system was a proven failure. I want to say very clearly that this analysis is without foundation. The old system was never even tried. Blame the Council, blame the Control Board, blame Marion Barry, blame Tony Williams, blame the U.S. Attorney, and/or anyone else if you please, but please don't say the old system failed us. If the system established by Bill 13-350 fails or is overturned by the courts, we may have to revert to something very much like it.

Let me note in this context that the Massachusetts version of Megan's Law has been struck down not once but twice by its state courts on the grounds that there was no provision for evaluating the risk to the public presented by individual sexual offenders. Bill 13-350 may be vulnerable to judicial overthrow on similar grounds. The fact that a since-departed Judiciary Committee staffer, who helped to shepherd the emergency and temporary bills enacted in July, was heavily involved with drafting the discredited Massachusetts Megan's Law should give pause to every Councilmember.

Accordingly, Bill 13-350 needs a greatly expanded right to judicial review for registration and public notification decisions. The present system of review is too limited and crabbed, confining judicial oversight to issues of fact. Even what judicial review is provided for is more illusory than real. Should the D.C. Superior Court find that the Court Services and Offender Supervision Agency made an error of fact in a particular registration decision, the Superior Court -- a District government agency -- would have no power to force the federalized Court Services agency to comply with its finding.

Far stronger judicial review protections are in order. Court decisions in Massachusetts and New Jersey, as well as in the Federal Third Circuit, required states to afford an opportunity for judicial review of an order to register and the appropriate level of community notification based upon the claim that the offender is a continuing danger to the public. Merely adding on extra punishment to sexual offenders, without providing for judicial review, was held to be unconstitutional.

We are told that other court decisions have held differently. If there is any division among the courts on this issue, we feel that the District's decision should come down squarely on the side of the standards laid out in the Massachusetts and New Jersey courts. Again, gay men are among those most likely to benefit by judicial review of administrative decisions that may be motivated more by homophobia than by any legitimate concern for protecting the public.

There are many other sections of Bill 13-350 that need substantial overhaul. Our friends at the ACLU are presenting testimony today recommending a broad variety of changes, and we at GLAA are happy to associate ourselves with the ACLU's recommendations. Many of these amendments have direct and obvious relevance to the cases of gay men who might otherwise be inadvertently victimized by the bill as presently written. I hope we don't hear Councilmembers dismiss these proposals, as we heard in July, as merely "the ACLU amendments." These are GLAA's amendments as well, and we thank the ACLU for its vigorous and courageous leadership.

For the record, let me make one distinction. The ACLU opposes Megan's Law on principle, and would object to the bill even if all its amendments are adopted. That is not GLAA's position; we have taken no stance either for or against the approach of the basic bill itself. We do hope that our concerns about Bill 13-350 can be resolved productively so that we will not have to oppose it.

I want to devote my remaining testimony to one all-pervasive issue that was of deep concern to us earlier and remains so now. That is the question of which agency will control the registration component. Bill 13-350, in line with the emergency and temporary acts enacted in July, takes this power from our own Metropolitan Police Department and hands it over to a newly federalized agency, the Court Services and Offender Supervision Agency (CSOSA).

This was a drastic mistake in July. It must be rectified now in the permanent legislation. It makes no more sense than handing over enforcement of the D.C. Human Rights Act of 1977 to the federal Equal Employment Opportunity Commission. That step might indeed save us some money, and the EEOC enjoys a fine reputation for its commitment to civil rights in general (though it has suffered from a case backlog of its own). But how long would it be before a hostile Congress and/or a hostile President would be pressuring the EEOC to ignore the protections afforded gay men and lesbians (not to mention other classes) by the D.C. law?

District laws should be enforced by District government agencies with oversight by District elected officials. We have said it many times, and we need to repeat it here: no constituency has a greater stake in home rule principles than lesbians and gay men, because Federal authorities are so often fundamentally antagonistic towards our basic human rights.

We raised this matter during our July 21 meeting with Police Chief Charles Ramsey and his top aides. Quite properly, Chief Ramsey stated that the Department could not take a stand on this issue separately from the official stance of the Williams Administration. But he did offer, from his own prior experience, that most states do in fact place responsibility for controlling both the registration and the public notification components of Megan's Law in the hands of the same agency, and that usually the Police Department is that one agency. He cited the possibilities for friction and communications breakdowns when two separate agencies control the two parts of the system, difficulties he thought might be multiplied here if a District agency (the MPD) controls the public notification process and a federal agency (the Court Services agency) controls the registration process. He said he would be quite comfortable with MPD retaining control of the registration component if that is the decision made by the Council and the Mayor. Assistant Chief Terry Gainer repeated these comments during a subsequent meeting with the ACLU and other community organizations attended by GLAA's Public Safety Director, Rick Rosendall.

True to his word to obey the party line laid down by the Williams Administration, Chief Ramsey is now on record favoring the transfer of the registration component to CSOSA. Undoubtedly the Administration is thinking primarily of the costs that the District would have to bear, costs they are willing to shift to a federal authority. But if costs alone are the controlling factor, we in the District will be surrendering more and more of our home rule duties and responsibilities. We submit that control of the registration process is one function we can not afford to give away.

By giving control of the registration component to a federal agency, the emergency and temporary legislation effectively surrendered control of this aspect by elected D.C. officials. The bills passed in July covertly acknowledged this fact by its choice of language. The Council did not direct the Court Services agency to do anything but merely "authorized" it to follow certain policies. The federal government has the power to make all policy decisions that will control the Court Services agency. There is every reason to fear that Congressional and Presidential policy directives will sooner or later be distinctly homophobic. And there will be nothing the Council can do about it.

That is why we are not calmed by assurances that the Court Services agency will perform nothing but a "ministerial" function, merely implementing policy directives. The agency will have to follow the directives of Congress and the President, which may be starkly at odds with the intentions of our elected Council and Mayor. By the same token, we are not assured by those who tell us that the agency (technically, its predecessor agencies that were combined and federalized) has had a long history of dealing responsibly with offenders. That history was made under the sway of the District government; but now that those agencies have been federalized, that history is, well, history.

There is no reason to surrender any more home rule than we already have. The Metropolitan Police Department, whatever its faults, remains under the supervision of our own elected officials. The Court Services and Offender Supervision Agency, whatever its past virtues, does not. A Congress or a President hostile to the District's gay community may all too easily undo any and all protections incorporated into our version of Megan's Law merely by the aggressive exercise of their total control of CSOSA. The District of Columbia generally, and our gay residents specifically, can not afford to depend on either the kindness of our enemies or on their failure to appreciate the opportunities for demagoguery presented them if the current version of Bill 13-350 is enacted.

Thank you. I would be glad to answer any questions you may have.

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