PDF version of the above document 01/05/99
Gay and Lesbian Activists Alliance
"Sex Offender Registration Act of 1999," Bill 13-350
Talking Points on Megan's Law Bill
THE BRAZIL BILL HAS THREE MAJOR DEFECTS:
- Inadequate Judicial Review: The Brazil bill essentially allows someone to seek relief from an order to register as a sex offender only with a claim that there is a mistake of fact, e.g., the victim was not a minor. As explained below, this is constitutionally inadequate.
- Misdemeanors Against Adults Are Registration Offenses: This is contrary to the purpose of Megan's Laws: to protect society from dangerous sexual predators, those who abuse children and commit acts of violence. Misdemeanor charges have been used against gay men entrapped in undercover sting operations, and have no place in the District's SORA.
- Immunity and Private Rights of Action: The bill provides for good faith immunity for persons administering the law, but then states that no private right of action is created even for an intentional violation of the statute.
WHY YOU SHOULD SUPPORT THE GLAA/ACLU AMENDMENTS:
1. Dispute Resolution Procedures in the Superior Court
A. Councilmember Brazil, during the November 15 markup, referred to the judicial-review amendment as a "poison pill" that would negate the purpose of Bill 13-350 by taking us back to what he called the "failed" previous law, which called for an up-front administrative process of risk assessment for every prospective person on the registry. But no money was ever appropriated to implement the previous law. It is hardly reasonable to describe a law as having failed when it was never given a chance. In any case, our amendment does not provide administrative risk assessment, but instead strengthens the provisions for judicial review.
B. Megan's laws have been upheld as regulatory schemes to notify communities of the presence of persons likely to commit serious sexual offenses. Courts have ruled that a person must be permitted to demonstrate that he or she does not present a continuing danger to society. Statutes that did not provide persons an opportunity to challenge the requirement to register or the level of public notification have been struck down as violative of the constitutional requirement for due process. Our amendment would correct this deficiency in the current bill by allowing persons to petition the Superior Court to rule that, because they are not continuing dangers to society, (1) they are not required to register under the act or (2) the Metropolitan Police Department's determination as to the level of community notification is not appropriate.
C. On one hand, Megan's Laws have been upheld as constitutional regulatory programs on the theory that public safety is enhanced when communities are notified of the presence of persons who are likely to reoffend. On the other hand, Megan's Laws have been struck down as punitive when they do not provide for judicial review as to whether the person presents a continuing danger to society. This distinction between regulatory and punitive has nothing to do with whether the statute provides for an agency to do the initial risk assessment. Whether a system is offense or offender based is not relevant to the constitutional requirement for judicial review. The real "poison pill" would be passage of a bill which fails to address constitutional concerns already raised in court rulings on similar bills. The best way to prevent this bill from suffering the fate of the Massachusetts law, and to save District taxpayers from high litigation costs, is to adopt our amendment to provide for adequate judicial review.
D. Councilmember Brazil has suggested that the proposed amendments on judicial review constitute a violation of Home Rule. The implication here seems to be that respect for constitutional due process, to the extent that it interferes with an instantaneous sex offender registry, is anti-democratic. This is wrong in at least three respects. First, we are seeking these amendments through the normal legislative process; what could be more democratic? Second, judicial review is part of our democratic system; when a Massachusetts court twice struck down that state's Megan's Law due to lack of adequate judicial review provisions, the courts were playing their crucial part in the balance of powers of our democratic system of government. Third, as a civil rights organization we take issue with the suggestion that simple majoritarianism should be permitted to trump the Bill of Rights.
E. In a recent email newsletter, Councilmember Brazil stated that judicial review will take two years, without explaining how he derived that number. To respond to this concern, the amendment has been changed so that if a person loses his claim concerning registration or notification before the Superior Court and then appeals that decision to the Court of Appeals, there is no stay of the Superior Court's decision. This means that registration and community notification can go forward while the matter is on appeal. This further means that registration and community notification should at most be delayed by 60 days, while the Superior Court is considering the matter. (The Brazil bill provides that the Superior Court must decide these cases within 60 days, and we have not sought to alter this.) In short, there is no basis now for anyone to argue that judicial review will take too long and put the community at risk because notification is unduly delayed.
2. Misdemeanor Sexual Offenses
A. Megan's laws are intended to protect society from persons likely to commit serious sexual crimes, i.e., crimes of sexual violence and sexual crimes against children. Except where misdemeanor sexual offenses are committed against children, misdemeanors have no place in this bill. Specifically, Misdemeanor Sexual Abuse, D.C. Code § 22-4106, should be deleted as a registration offense except when committed against a minor. In addition, the misdemeanor of simple assault should be deleted, except when committed against a minor.
B. Our opponents argue that because persons are charged in a plea bargain with misdemeanors and not felonies, even though the crime was really a felony, misdemeanor offenders must be registered under SORA. But that argument fails to recognize that the bill's definition of a "registration offense" includes cases "where the offender agrees in a plea agreement to be subject to sex offender registration requirements." Bill section 2(8)(H). The prosecuting attorney is thus empowered to insist as part of a misdemeanor plea agreement that the offender register. Our amendment would not change this.
C. Supporters of the current bill claim that misdemeanor offenses against adults must be registration offenses to protect the safety of the community. But in its proposed rules for community notification of the presence of sex offenders, the Metropolitan Police Department explicitly excludes community notification of persons convicted of misdemeanors against adults. We must conclude from this that the police do not believe that such persons present a significant danger to others.
D. Councilmember Brazil, in response to our concerns, routinely cites cut-and-dried cases of violent rapists, as if these are the only people affected by the legislation. As GLAA and Councilmember Graham have pointed out to him, we have no argument with him concerning those clear cases involving violent offenders. Our concern is over less clear-cut cases and in particular over non-violent, misdemeanor cases such as those resulting from the sort of entrapment that is still being practiced by the U.S. Park Police, and which are prosecuted in other jurisdictions even if they are not being prosecuted at present by the office of U.S. Attorney Wilma Lewis. Gays convicted of misdemeanors as a result of such undercover sting operations should not be doubly punished by being subjected to registration as if they are a danger to society. The gay community understands the evils of entrapment all too well, and it is a very high priority for us to exclude these kinds of consenting-adult offenses from any sex offender registry. If the Council refuses to adopt our entirely reasonable and carefully crafted amendment, we will view that refusal as a very serious slap at our community and a return to the antediluvian days of vice squad abuses against gays.
3. MPD as the Legal Custodian of the Registry
A. Our commitment to Home Rule in the District mandates that MPD rather than a federal agency, the Court Services and Offender Supervision Agency, should have the legal responsibility for the registry. This is not simply a matter of form, as MPD is subject to the orders of the Superior Court whereas the Court Services and Offender Supervision Agency is not. The Court Services and Offender Supervision Agency should perform the ministerial duties in support of MPD (collect and update the registration information, etc.), but the legal responsibility for the process must be vested in MPD.
4. Classification Scheme for Community Notification
A. The rules concerning the level of community notification are critical to the purposes of the statute and should be enacted as part of the bill in the normal legislative process. Any changes to the rules must be subject to the same process.
5. Immunity and Right to a Cause of Action
A. The current bill provides for good faith immunity, recognizing that there is a private right of action for intentional violations of the act. But the next paragraph states that no private right of action is created, thus effectively establishing absolute immunity. In the extreme and presumably limited number of cases where a District employee deliberately violates the statute, e.g., by unlawfully broadcasting someone's name and data on the Internet, the bill must recognize a private right of action.