Talking Points on Megan's Law Bill 11/28/99
PDF version of the above document 01/05/99
Public Defender ServiceAnswers to Frequently Asked Questions
on the District's Megan's Law Bill
"Sex Offender Registration Act of 1999" (Bill 13-350)
November 23, 1999
[Note: The DC Public Defender Service (PDS) prepared the following FAQs to help explain the bill, their concerns with it, and amendments being sought by PDS, the ACLU of the National Capital Area, and GLAA. The views expressed in this document do not necessarily reflect those of GLAA.]
Q. What is the difference between an offender-based and offense-based classification system?
A. Under most offender-based systems, individuals convicted of sex crimes have their cases referred to an advisory committee of experts who evaluate the individual's history and recommend to a court what level of risk classification should be assigned. The court then makes a final determination of risk classification. Offense-based systems use predetermined classifications. The legislature decides that some offenses are require high-risk classification and other offenses merit middle- or low-risk classification.
Q. What system do we use?
A. When the Sex Offender Registration Act of 1996 was passed, it was a classic offender-based system, involving recommendations from an advisory committee. The temporary legislation passed this summer and the proposed new permanent legislation utilize an offense-based system.
Q. Why are we switching to an offense-based system?
A. The offender-based system did not work in the District because the advisory committee was never fully funded and staffed. Because the system was non-functional, the District was in danger of losing $200,000 in federal funds. The decision to switch to an offense-based system was made largely because it is a more streamlined and less costly process.
Q. Do offender-based systems with advisory committees exist in other jurisdictions?
A. Yes and they work. Pennsylvania and New York are two of a number of states relying on such an advisory committee system without reports of excessive cost or inefficiency.
Q. Is there any model for this type of advisory committee recommendation and judicial decision-making anywhere else in the District's system of law?
A. Yes. Individuals who are under the age of 22 at the time of sentencing are eligible for a Youth Rehabilitation Act sentence. In those cases, the individual is reviewed by a panel of experts that makes a recommendation to the court as to whether the individual should receive the benefits of a Youth Act sentence. That model has worked efficiently and has effectively balanced individual rights against the need for judicial economy.
Q. Is it true that 50% of sex offenders reoffend?
A. The highest estimates in the literature are at the 50% mark. Other estimates put the numbers closer to one-third.
Q. Is there any way to tell which offenders are more likely to recidivate than others?
A. Yes. Several actuarial tests have been developed and applied showing a high correlation between certain factors and recidivism. The most widely accepted of these tests is called the Rapid Risk Assessment for Sexual Offender Recidivism (RRASOR). The RRASOR uses four factors and a point system to categorize offenders. The offender then receives a total score. Individuals scoring in the high end of the scale pose a major risk of reoffending -- 73% of the highest-scoring group reoffend within ten years of release. But those at the low end of the range are extremely unlikely to recidivate -- only 6.5% of the lowest-scoring group reoffend within ten years of release. These numbers make the 50% overall number somewhat misleading because one can more accurately predict which of the offenders are most likely to recidivate.
Q. What are the advantages and disadvantages of switching to an offense-based system?
A. The primary advantages are a more streamlined and less costly system. The major disadvantage is that individuals who do not pose a real danger to the community and who are not at high-risk of reoffending, will be subjected to lengthy registration obligations and broad public notification of their identities, whereabouts, and criminal history.
Q. What does "broad public notification" mean?
A. At the outset, it means Internet publication, fliers handed out in neighborhoods and at community meetings. The media may spread notification further through newspapers, radio, and television.
Q. What's so bad about being over-inclusive and allowing broad public notification regarding even those sex offenders who do not pose a real risk to the community?
A. Aside from the stigma associated with being a sex offender, individuals who are subject to broad public notification suffer very real harm. Job loss is widespread. Individuals who have already served their time in prison are nonetheless harassed and picketed by neighbors. Some individuals in other jurisdictions have been driven from their homes. Others have entered psychiatric hospitals and committed suicide because of the force of the community's response to their presence. Additionally, vigilante attacks have become common-place. For example, in the first six years of Washington State's Megan's Law, there were 17 reported acts of vigilantism against registered individuals.
Q. Is there a way to keep an offense-based system but allow individuals who may not be a threat to the community a chance to show they do not merit broad public notification?
A. Yes. The ACLU has forwarded a proposal that would allow individuals to challenge in court the propriety of their registration obligations and the proper extent of notification. The ACLU proposal is modeled after court decisions from New Jersey, Pennsylvania, and Massachusetts that set baseline constitutional standards for the opportunity to have individualized review of cases. Courts from all three states have held that the prospect of judicial review is required to comply with Due Process.
Q. What situations are most likely to merit review?
A. The classic example is of the "unwitting statutory rapist." Attached to this FAQ is an article about an eighteen-year-old boy whose girlfriend was fifteen. When she got pregnant he tried to take responsibility by marrying her and raising their child together. That effort was met with prosecution. The boy was convicted of statutory rape. If he were to move to the District, he would be required to register for life and would be subject to the broadest possible notification. The fliers that would be distributed in his neighborhood would label him a violent child molester. He is precisely the type of person who should be able to go before a judge and say, "Not me. Maybe all the other statutory rapists, but not me."
Q. How would the review work?
A. There would be a presumption that an individual is classified according to the offense for which he is convicted. An individual who believes his case presents the exception to the rule would be permitted to file a motion seeking review in Superior Court. If the motion failed to rebut the presumption that the individual be classified as required by statute, the motion would be summarily denied. Only in those cases where the judge thinks the motion has merit would the Office of the United States Attorney be required to reply. The judge would then hold a hearing at which the prosecutor would need to show the propriety of the classification by clear and convincing evidence. If the prosecutor did not carry that burden, the judge would define the risk level, registration obligations, and/or notification eligibility.
Q. Why clear and convincing evidence?
A. That's the standard the courts in New Jersey, Pennsylvania, and Massachusetts have deemed to be the constitutional minimum (the Pennsylvania Supreme Court recently went even a step beyond the standards in the proposed amendment). Also, that's the Supreme Court-approved test used in making decisions about pretrial release. In both settings (pretrial release and Megan's Law) a court is called upon to make a determination about the extent to which an individual poses a future threat to the community. They are both predictive models and fit well together analytically.
Q. Are there any differences between the New Jersey, Pennsylvania, and Massachusetts laws and our law that would change the constitutional standard?
A. No. In fact, the main difference between their statutes and the Bill is that they use an offender-based system whereas we would be using an offense-based system. Because the offender-based system affords, by its very nature, some individualized assessment, the need for individualized review is even LESS than in an offense-based system where the legislature creates classes taking nothing about the individual into account. If anything, the offense-based system requires MORE procedural protections than an offender-based system.
Q. Are misdemeanors covered by the Bill?
A. Yes. Although the federal law that threatens us with the loss of funds does not require the inclusion of misdemeanors, the District's bill does mandate ten years of registration for misdemeanor convictions. It should be noted, that individuals convicted only of misdemeanors are not subject to broad public notification unless as part of a plea bargain they agree to being subject to such. This indicates that the police do not consider misdemeanants as likely to pose a serious danger to the communities in which they live.
Q. What are the dangers of including misdemeanants in the registry?
A. First, Megan's Law is supposed to be a community safety law. Individuals who are convicted of extremely minor crimes of sexual contact usually do not pose a real threat to community safety.
Second, these individuals are subject to a maximum of 180 days in jail, yet are required to register for ten years. There is no provision in the current bill allowing such individuals to be exempted from registration requirements even if they complete sex offender counseling or can show that they do not pose a real danger of recidivating.
Third, the judicial system will be bogged down by cases that would otherwise plead but where the individual charged does not want to become part of the registry. The ACLU has proposed an amendment that would allow individuals to plead out of the registration requirement (similar to the provision mentioned above that allows an individual to plead into the law).
Fourth, and finally, several states have suffered inadvertent public disclosure of information regarding registrants. Subjecting misdemeanants, even inadvertently, to public disclosure is a danger best avoided.
Q. Is there any provision at all for individuals to challenge their placement in the registration and notification systems?
A. Yes, but it is extremely limited. The Bill does include a provision for challenges by individuals who are factually misclassified. For example, a man is convicted of third-degree sexual abuse against an adult. Although that crime requires only ten years of registration, the Court Services Offender Supervision Agency, orders the individual to register for life. Because there is a factual mistake, the individual may challenge the classification in court. There is, however, no challenge provision for individuals to challenge their placement on the grounds that they do not pose a danger to the community. Therefore, as the Bill is currently written, individuals convicted of misdemeanors that included sexual touching will be required to register for ten years regardless of the circumstances of the crime.
Q. How does the prospect of registering misdemeanants affect the gay community?
A. The drafters of the Bill made an effort to exclude gay men caught in entrapment schemes by excluding from registration people whose crimes involve sexual touching of an adult undercover law enforcement officer. The results of that effort are, however, insufficient. Take the following example: A man is entrapped by an undercover police officer in another state and is convicted of a misdemeanor sexual touching. The man is put on probation and then moves to the District. Because he has been convicted of a sex crime, he is required by the Court Services Offender Supervision Agency to register as a sex offender. The onus is then on the individual to challenge that registration requirement in court. Not only would that court challenge be public, but the responsibility for proving that the law enforcement officer touched by the individual was actually a law enforcement officer would be borne by the individual. There are many circumstances under which it would be extremely difficult for that individual to carry the burden of proof in such a situation. The individual would wind up in the registry and subject to some public notification. For this reason, excluding misdemeanors is a high priority for the Gay and Lesbian Activists Alliance and other gay activist groups.
Q. Is there a compromise that would allow the registration of some misdemeanants, but not all?
A. Possibly. Simple Assault could be excluded from the registry (unless an individual agrees, as part of a plea, to be covered by the Act). Also individuals convicted of Misdemeanor Sex Abuse against adults could be required to register only after their second conviction for a sex crime. This would ensure that the prosecutors and defense attorneys have an escape hatch for the very low-level conduct that constitutes Simple Assault. (It should be noted here that the U.S. Attorney's Office normally does not charge sex crimes as Simple Assault -- thus this provision would only apply to pleas where both the prosecutor agrees the person should be exempt from Megan's Law.) The law would still cover individuals who, although their conduct is less serious, are repeat offenders while exempting those who make one-time mistakes. The compromise would still require registration of individuals who commit misdemeanor sexual abuse against children, regardless of whether it is a first or subsequent offense.
While this compromise would not fully satisfy the gay rights community and the other opponents of the Bill, it would minimize the strain on the system and limit the number of non-dangerous offenders subject to the Bill's burdens.
Q. Are there any other provisions in the Bill that should concern us?
A. Yes. The Bill subjects officials who operate under the new law to civil liability for bad faith actions. However, the Bill does not create any cause of action for such bad faith acts. Take the following hypothetical: An individual is required to register for his misdemeanor sexual abuse conviction for brushing his hand against the buttocks of a woman on the Metro. An employee of the Metropolitan Police Department accesses his name on the registry and decides to include the individual's name and address on a list of sex offenders being distributed at a PTA meeting. The individual who was not supposed to be subject to broad public notification would have no cause of action against the bad faith acts of the MPD employee. The Bill must be amended to specify that a cause of action exists for bad faith acts by officials.