The legal issues

In late 1994 the New Jersey legislature, in response to a public uproar following the death of four young girls who were molested, then killed, by sex offenders, enacted a package of interrelated sex offender statutes, the most important three of which are the focus of this commentary. The first requires sex offenders released from prison to register with the police. The second establishes a system of notification to communities concerning released sex offenders. The third provides for the civil commitment of mentally ill and violent sex offenders. These three statutes, along with several others, have come to be known, collectively, as "Megan's Law," named after Megan Kanka, the latest and most publicized victim. Registration The registration act is the least controversial of the three.(1) Law enforcement authorities claim that the benefits of registration statutes are substantial. They facilitate the investigation of sexual crimes, establish a legal ground for detaining known sex offenders found in suspicious circumstances, and perhaps deter released sex offenders from committing new sexual crimes because they know they can be easily traced. The civil liberties of sex offenders are intruded upon only minimally by these statutes since registration takes little time or effort, does not unduly invade privacy, and does not publicly stigmatize sex offenders or make it difficult for them to adjust to community living. Opponents argue that sex offenders should not have to endure registration because they have "paid their debt" to society by suffering imprisonment. This claim overlooks the reality that the legislature defines the debt. In this case the debt includes post-prison monitoring. Opponents also argue that registering sex offenders may have the paradoxical effect of encouraging reoffending on the ground that the registration of sex offenders may confirm them in the recognition that they are"bad" and that they might as well act bad and reoffend. This is pure speculation and not persuasive. Critics argue further that registration statutes foster a false sense of security and represent an expenditure of valuable funds that might better be spent on treatment and closer supervision of the most dangerous offenders. But most states are beginning to respond to the problem of sexual crime on a variety of such fronts, and not exclusively by registration. The arguments of these critics, whatever their merits, have been overtaken by events. By February 1995 more than forty states had enacted registration statutes, sixteen of them in 1994 alone, and it seems likely that the rest of the states will adopt such statutes soon because new federal legislation requires each state to enact a registration law within three years or lose ten percent of its federal crime control grant.(2) Four state registration statutes have been challenged as unconstitutional. In each case the statute has been upheld.(3) One argument against registration statutes has already proved to be unfounded. It had been argued that these statutes would not be complied with and that most offenders would evade registration. But data collected by California and Washington state agencies indicate that there has been a relatively high rate of compliance, seven-six percent in the state of Washington.(4) Community Notification The second statute of this package, the notification statute, is more controversial and has been challenged in New Jersey as it surely will be in other states, though only a few states have as yet enacted such a statute.(5) Contrary to what is often assumed, the New Jersey statute does not require general community notification for all released sex offenders but, rather, provides for three tiers of notification. The first, for offenders at low risk of reoffending, provides only for notice to victims and law enforcement agencies likely to encounter the offender. Offenders are considered to be at low risk if they are under the supervision of probation or parole, are receiving therapy, are employed or employable, and are free of alcohol or drug abuse. …