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[House Report 104-555]
[From the U.S. Government Publishing Office]

104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     104-555
_______________________________________________________________________

 
                              MEGAN'S LAW

                                _______

  May 6, 1996.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

_______________________________________________________________________

   Mr. McCollum, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 2137]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 2137) to amend the Violent Crime Control and Law 
Enforcement Act of 1994 to require the release of relevant 
information to protect the public from sexually violent 
offenders, having considered the same, report favorably thereon 
with an amendment and recommend that the bill as amended do 
pass.
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as ``Megan's Law''.

SEC. 2. RELEASE OF INFORMATION AND CLARIFICATION OF PUBLIC NATURE OF 
                    INFORMATION.

    Section 170101(d) of the Violent Crime Control and Law Enforcement 
Act of 1994 (42 U.S.C. 1407(d)) is amended to read as follows:
    ``(d) Release of Information.--
          ``(1) The information collected under a State registration 
        program may be disclosed for any purpose permitted under the 
        laws of the State.
          ``(2) The designated State law enforcement agency and any 
        local law enforcement agency authorized by the State agency 
        shall release relevant information that is necessary to protect 
        the public concerning a specific person required to register 
        under this section, except that the identity of a victim of an 
        offense that requires registration under this section shall not 
        be released.''.

                          Purpose and Summary

     This bill would amend a provision enacted as part of the 
Violent Crime Control and Law Enforcement Act of 1994 (Public 
Law 103-322). Title XVII of that Act, the ``Jacob Wetterling 
Crimes Against Children and Sexually Violent Offender 
Registration Act'' (42 U.S.C. 14071), requires States to 
implement a system where all persons who commit sexual or 
kidnapping crimes against children or who commit sexually 
violent crimes against any person (whether adult or child) are 
required to register their addresses with the State upon their 
release from prison. The 1994 Act also provides that law 
enforcement agencies may release ``relevant information'' about 
an offender if they deem it necessary to protect the public. 
This bill will require the release of such information when law 
enforcement officials deem it to be necessary to protect the 
public.
     While the 1994 Act does not mandate that States comply 
with its provisions, a State's failure to implement such a 
system by September 1997 will result in that State losing part 
of its annual federal crime-fighting funding.

                 Background and Need for the Legislation

     Perhaps no type of crime has received more attention in 
recent years than crimes against children involving sexual acts 
and violence. Several recent tragic cases have focused public 
attention on this type of crime and resulted in public demand 
that government take stronger action against those who commit 
these crimes.
     In partial response to this demand, Congress passed Title 
XVII of the Violent Crime Control and Law Enforcement Act of 
1994 (Public Law 103-322). That title, the ``Jacob Wetterling 
Crimes Against Children and Sexually Violent Offender 
Registration Act,'' attempted to address the concerns about 
these crimes by encouraging States to establish a system where 
every person who commits a sexual or kidnapping crime against 
children or who commit sexually violent crimes against any 
person (whether adult or child) would be required to register 
his or her address with the State upon their release from 
prison. As a further protection, the 1994 Act required States 
to allow law enforcement agencies to release ``relevant 
information'' about an offender if they deemed it necessary to 
protect the public.
     The 1994 Act provision with respect to notification only 
required States to give law enforcement agencies the discretion 
to release offender registry information when they deemed it 
necessary to protect the public. It has been brought to the 
attention of the Committee, however, that notwithstanding the 
clear intent of Congress that relevant information about these 
offenders be released to the public in these situations, some 
law enforcement agencies are still reluctant to do so. This 
bill would amend the 1994 Act to mandate that States require 
their law enforcement agencies to release ``relevant 
information'' in all cases when they deem it ``necessary to 
protect the public.''
    The bill also amends the 1994 Act to provide that 
information collected under a State registration program may be 
disclosed for any purpose permitted under the laws of that 
State. The 1994 Act required that information collected by the 
registration program be kept confidential. In some instances 
this requirement limited public access to what had been public 
records before the 1994 Act became law. H.R. 2137 will correct 
this unintended consequence of the 1994 Act by allowing each 
State to determine the extent to which the public may gain 
access to the information kept by the State.

                                Hearings

    The Committee's Subcommittee on Crime held one day of 
hearings on H.R. 2137 on March 7, 1996. Testimony was received 
from two witnesses, Representative Dick Zimmer of New Jersey, 
the sponsor of H.R. 2137, and Kevin Di Gregory, Deputy 
Assistant Attorney General, Department of Justice, with no 
additional material submitted.

                        Committee Consideration

    On March 21, 1996, the Subcommittee on Crime met in open 
session and ordered reported the bill H.R. 2137, as amended, by 
a voice vote, a quorum being present. On April 25, 1996, the 
Committee met in open session and ordered reported favorably 
the bill H.R. 2137, without amendment, by a voice vote, a 
quorum being present.

                         Vote of the Committee

    There were no recorded votes in Committee with respect to 
this bill.

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

                        Committee Cost Estimate

    In compliance with clause 7(a) of rule XIII of the Rules of 
the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 2137, the following cost estimate for 
the next five fiscal years.
    The Committee estimates that the costs associated with the 
implementation of H.R. 2137 will not be substantial. A 
significant number of variables are associated with the States' 
costs as a result of the bill's implementation. For example, 
the number of offenders released from prison subject to 
notification requirements will vary from one State to another. 
Also, methods of notification will be different depending upon 
the nature of the community involved. It is important to note 
that the bill does not impose conditions on federal funds to 
the States beyond what was contained in the 1994 Act.
    While States which choose to comply with the bill will be 
required to give public notice as to the residence of certain 
offenders, the frequency of this notice will depend upon when 
offenders subject to the reporting requirement are released, a 
fact which cannot be estimated. Also, under current law, State 
law enforcement officials have the discretion as to the type of 
notice to be given to the public, a fact that further 
complicates any estimate of the costs of this bill.

                     Inflationary Impact Statement

    Pursuant to clause 2(l)(4) of rule XI of the Rules of the 
House of Representatives, the Committee estimates that H.R. 
2137 will have no significant inflationary impact on prices and 
costs in the national economy.

                      Section-by-Section Analysis

    Sec. 1. Title. Section 1 states the short title of the bill 
as ``Megan's Law.''
    Sec. 2. Release of Information and Clarification of Public 
Nature of Information. Section 2 restates the entire text of 
section 170101(d) of the Violent Crime Control and Law 
Enforcement Act of 1994 (42 U.S.C. 14071(d)) as amended by the 
bill. Specifically that section of title 42 will now provide 
that States must requires law enforcement agencies to release 
``relevant information that is necessary to protect the 
public'' in all cases in order to comply with the 1994 Act and 
not lose the federal crime fighting funds tied to compliance 
with the Act. In other words, whenever State law enforcement 
officials believe that releasing relevant information about an 
offender required to register with the State's offender 
registry would be necessary to protect the public, they must 
release that information in order to comply with the 1994 Act.
    Section 2 also amends current law with respect to the 
question of whether information collected in a State's offender 
registry will be treated as public or private information. The 
1994 Act required States to treat all such information as 
private data. However, some States had already established 
policies pursuant to State's law whereby some of the 
information was available to the public. H.R. 2137 amends the 
1994 law to provide that each State may decide to what extent 
information in its State offender registry will be made 
available to the public.

                              Agency Views

    The Committee received a letter from Andrew Fois, Assistant 
Attorney General, U.S. Department of Justice, providing 
Administration views on H.R. 2137 and other bills. The letter 
addressed the issues presented in H.R. 2137, in pertinent part, 
as follows:

                         h.r. 2137--megan's law

    H.R. 2137 would require the release of relevant information 
to protect the public from child molesters and other sexually 
violent offenders. The Department of Justice supports the 
enactment of this legislation.
    The Jacob Wetterling Crimes Against Children and Sexually 
Violent Offender Registration Act provides a financial 
incentive for States to establish effective registration system 
for released child molesters and other sexually violent 
offenders. States that fail to establish conforming 
registration systems will be subject to a 10 percent reduction 
of formula Byrne Grant funding, and resulting surplus funds 
will be reallocated to States that are in compliance. The 
current provisions of the Jacob Wetterling Act permit, but do 
not require, States to release relevant registration 
information that is necessary to protect the public concerning 
persons required to register.
    H.R. 2137 would make the disclosure of registration 
information necessary to protect the public mandatory rather 
than permissive under the Act's standards. The Department of 
Justice supports the reform. Where a State has information 
through its registration system concerning a child molester or 
other sexually violent criminal who poses a continuing danger 
to others, the State should not withhold this information from 
persons who need it for the security of themselves and their 
families. A number of States already provide for community 
notification or other forms of disclosure in appropriate 
circumstances, and the change in the Jacob Wetterling 
provisions proposed in H.R. 2137 would encourage additional 
States to adopt such measures.
    In the Department's proposed guidelines for the Jacob 
Wetterling Act (60 Fed. Reg. 18617, April 12, 1995), we have 
explained that the Act accords States discretion concerning the 
standards and procedures to be applied in determining whether a 
registering offender constitutes a danger to the public, and 
concerning the nature and extent of disclosure necessary to 
protect the public from such an offender. H.R. 2137 makes the 
``public safety'' disclosure provision of the Act mandatory--
changing ``may'' to ``shall''--but does not otherwise change 
the language of this provision.
    Hence, States will need to provide for such disclosure 
following the enactment of H.R. 2137 to comply with the Act, 
but they will retain discretion concerning specific standards 
and procedures and the nature and extent of disclosure in 
implementing this requirement. For example, New Jersey's 
multitiered system for classifying offenders based on risk and 
making varying degrees of disclosure on the basis of that 
classification would be consistent with the ``public safety'' 
disclosure provision of the Jacob Wetterling Act as amended by 
H.R. 2137.
    In addition to endorsing the particular change proposed in 
H.R. 2137, we recommend an additional amendment to the 
provision of the Jacob Wetterling Act relating to the release 
of information. Section 170101(d) of the Jacob Wetterling Act 
provides that information collected under State registration 
programs ``shall be treated as private data,'' subject to three 
exceptions--disclosure to law enforcement agencies for law 
enforcement purposes, disclosure to government agencies 
conducting confidential background checks, and disclosure for 
public safety reasons (as discussed above).
    The requirement that registration information generally be 
created as private data is not necessary or helpful in 
realizing the objectives of the Jacob Wetterling Act, and it 
imposes a limitation on the States that did not exist prior to 
the enactment of the Jacob Wetterling Act. We see no reason why 
States should not generally be free to make their own decisions 
concerning the extent to which registration data should or 
should not be treated as private data, as they have been in the 
past.
    We accordingly recommend deletion of the provision that 
information collected under State registration systems is 
generally to be treated as private data. This change, together 
with the change proposed in H.R. 2137, could be implemented by 
revising subsection (d) of Sec. 170101 of the Violent Crime 
Control and Law Enforcement Act of 1994 to read as follows:
    ``(d) Release of Information.--(1) The information 
collected under a State registration program may be disclosed 
for any purpose permitted under the laws of the State.
    ``(2) The designated State law enforcement agency and any 
local law enforcement agency authorized by the State agency 
shall release relevant information collected under the 
registration program that is necessary to protect the public 
concerning a specific person required to register under this 
section, provided, that this paragraph shall not be construed 
to require the disclosure of the identity of a victim of an 
offense that requires registration under this section.''
    Beyond the notification issue raised by H.R. 2137, 
discussion with the States indicates that some of the more 
detailed prescription in the registration provisions of the 
Jacob Wetterling Act may impede some State compliance, though 
that level of detail may be unnecessary to realize the 
essential objectives of the Act. We would be pleased to work 
with interested members of Congress to strengthen the Act by 
addressing legitimate concerns regarding impediments to 
effective State implementation.
    Finally, we believe that in conjunction with our efforts to 
encourage and strengthen State-based registration systems under 
the Jacob Wetterling Act, we should consider developing 
additional forms of federal assistance for the States that 
would complement and magnify the benefits of the Act.
    On at least one front, such assistance already is being 
provided. The FBI has developed a powerful tool known as CODIS 
to assist States in investigating and solving crimes involving 
biological evidence, including particularly serial and stranger 
sexual assaults. CODIS (short for ``Combined DNA Index 
System'') permits DNA examiners in crime laboratories to 
exchange forensic DNA data on an intrastate level, and will 
enable States to exchange DNA records among themselves through 
the national CODIS system. In the Final Guidelines implementing 
the Jacob Wetterling Act, which we plant to publish in the near 
future, we encourage States to collect DNA samples from 
registering sex offenders to be typed and stored in State DNA 
databases, and to participate in CODIS.
    In addition, we are exploring a modification to the 
National Crime Information Center, which is operated by the 
FBI, that would provide further assistance to law enforcement 
in this area. Under existing law and administrative 
arrangements, the information on sex offenders that is provided 
by the FBI is generally limited to ``rap sheet'' information, 
and does not include residence address information for the 
offenders. The Jacob Wetterling Act contemplates that States 
will have central registration authorities that administer 
their sex offender registration systems, and will provide 
mechanisms for ensuring that address information is kept up to 
date when the offender moves elsewhere in the State or to 
another State.
    However, implementation of these tracking systems will 
depend on compliance by the various States with these aspects 
of the Jacob Wetterling system. As States comply with Jacob 
Wetterling, the resulting databases would be maintained at the 
State level.
    Currently, the FBI is working with its Criminal Justice 
Information Services (CJIS) Advisory Policy Board, which 
advises the Director on criminal justice and law enforcement 
agency matters, to establish a Sex Offender Registration Index 
in the National Crime Information Center (NCIC). The FBI is 
working on additional technical and legal research related to 
this expansion of the NCIC 2000 ``Individuals on Supervised 
Release'' database, and expansion of NCIC 2000 to include a 
category of records for persons registered under the 
requirements of the Jacob Wetterling Act. We anticipate 
implementation of the Sex Offender Registration Index in NCIC 
2000 sometime after 1999.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3 of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

SECTION 170101 OF THE VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 
                                  1994

SEC. 170101. ESTABLISHMENT OF PROGRAM.

    (a) In General.--
          * * * * * * *
    [(d) Release of Information.--The information collected 
under a State registration program shall be treated as private 
data except that--
          [(1) such information may be disclosed to law 
        enforcement agencies for law enforcement purposes;
          [(2) such information may be disclosed to government 
        agencies conducting confidential background checks; and
          [(3) the designated State law enforcement agency and 
        any local law enforcement agency authorized by the 
        State agency may release relevant information that is 
        necessary to protect the public concerning a specific 
        person required to register under this section, except 
        that the identity of a victim of an offense that 
        requires registration under this section shall not be 
        released.]
    (d) Release of Information.--
          (1) The information collected under a State 
        registration program may be disclosed for any purpose 
        permitted under the laws of the State.
          (2) The designated State law enforcement agency and 
        any local law enforcement agency authorized by the 
        State Agency shall release relevant information that is 
        necessary to protect the public concerning a specific 
        person required to register under this section, except 
        that the identity of a victim of an offense that 
        requires registration under this section shall not be 
        released.
          * * * * * * *
                            ADDITIONAL VIEWS

    This bill amends the Jacob Wetterling Crimes Against 
Children and Sexually Violent Offender Registration Act, 
enacted as part of the 1994 Crime Bill to require, rather than 
permit, states to release certain information regarding persons 
convicted of molesting or kidnapping children, and certain 
other sex crimes when it is necessary to protect the public.
    While we are concerned about the costs of this bill and 
query whether this is yet another unfunded mandate, we 
understand the impetus behind the legislation. Anyone who has 
children certainly would want to know if a convicted child 
molester moved in next door.
    Nonetheless, we are always concerned about passing 
legislation with potential constitutional problems and we 
believe that the Committee has not adequately addressed these 
concerns with respect to this legislation. A federal district 
court has already found a similar statute unconstitutional, 
finding the notification provisions to constitute more a form 
of punishment than a regulatory scheme, and therefore, 
violative of the prohibition on ex post facto clause of the 
Constitution.1
---------------------------------------------------------------------------
    \1\ Artway v. Attorney General, 876 F. Supp. 666, 692 (D. N.J. 
1995), aff'd in part, vacated in part, claim dismissed, Nos. 95-5157, 
95-5194, 95-5195, 1996 U.S. App. LEXIS 7573 (3rd Cir. April 12, 1996).
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    On appeal, the Court of Appeals for the Third Circuit noted 
that the defendant's arguments that the community notification 
provisions could expose him to vigilantism and threats, harm 
his ability to find and hold a job and subject him to public 
shame.2 Nevertheless, the Court declined to rule on the 
constitutionality of the notification provision because the 
defendant had not registered with the police and the state had 
not officially notified anyone about his record. As a result, 
the court held that it could not make a decision based on a 
hypothetical situation and dismissed the case. 3
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    \2\ Artway v. Attorney General, Nos. 95-5157, 95-5194, 95-5195, 
1996 U.S. App. LEXIS 7573 (3rd Cir. April 12, 1996).
    \3\ Id.
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    We share the Third Circuit's concern that this legislation 
may lead to harassment and even physical harm against people 
who have served their debt to society and this legislation has 
the effect of presuming them guilty of some future wrong which 
may never be committed. We hope that people will not take the 
passage of this legislation as ``open season'' on released 
felons. The fact of the matter is that once a person has been 
released from prison, they are deemed to have paid their debt 
to society. This legislation should not be used to make 
citizens into vigilantes who might decide that a particular 
offender has not paid enough.
    We believe that this matter deserves further consideration, 
and hope that the Committee will pay close attention to the 
progress of similar legislation through the federal courts.

                                   Rick Boucher.
                                   Bobby Scott.
                                   Melvin L. Watt.
                                   John Conyers, Jr.

                                
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