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PERMANENT INJUNCTION: Offender statute restricted

U.S. judge rules law can't be applied retroactively

A federal judge issued a permanent injunction Wednesday that bars the state of Nevada from applying its new sex offender law retroactively.

U.S. District Judge James Mahan said the law, as applied to 12 sex offenders represented by the American Civil Liberties Union of Nevada, is unconstitutional.


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  • "Many of the plaintiffs here were convicted years ago and have paid their debt to society," the judge said.

    He said the law, which would change the way Nevada classifies sex offenders, would subject the plaintiffs to additional penalties -- "not because of anything that they have done."

    Mahan likened that scenario to the Legislature passing a law that says anyone ever convicted of burglary must now serve five more years in prison, even though they have been law-abiding citizens since their release from prison. That would be neither fair nor constitutional, he said.

    The judge stressed that his ruling would have no effect on existing laws that require the registration of pedophiles or laws that restrict their movement or housing.

    Deputy Attorney General Binu Palal said he did not know whether his office would appeal the decision.

    "We respect the ruling of the court, and we will review our options after we see the order," he said.

    Mahan declined to rule on whether the law may be applied to those convicted of sex offenses in the future. That issue is pending in state court.

    District Judge David Wall granted a preliminary injunction in June that prevented the law from taking effect as scheduled on July 1. Mahan issued a preliminary injunction a few days after Wall's ruling.

    The new law changed how the state categorizes sex offenders. Instead of categorizing them by their risk of re-offending, it categorized them by the crime they committed.

    It would have increased the number of Tier 3 sex offenders in Nevada from about 160 to more than 2,500. Tier 3 sex offenders have been convicted of the most serious offenses, including sexual assault and crimes against children.

    Tier 3 offenders must register with authorities every 90 days, submit to fingerprinting and, in some cases, wear GPS monitoring devices. Their personal information, including their photos, is posted on the state's sex offender Web sites.

    During Wednesday's hearing, Palal disputed Mahan's contention that the law's notification and registration requirements constitute punishment.

    "These are not additional criminal penalties," Palal argued.

    The Legislature passed the law in 2007 to bring Nevada in line with the federal Adam Walsh Act, signed by President Bush in 2006. The intent was to push all states to categorize sex offenders the same way.

    Backers of both the Nevada and federal legislation contend sex offenders will have a harder time evading detection once all states are on board.

    Maggie McLetchie, staff attorney for the ACLU of Nevada, said the federal law "is falling apart at its seams." She said most states have not enacted Adam Walsh Act legislation.

    Mahan said Nevada's new law violated a constitutional ban on "ex post facto," or retroactive, laws. He also said it violated due process clauses of the Fifth and 14th amendments, as well as the double jeopardy clause of the Fifth Amendment.

    "We're thrilled by the ruling," McLetchie said. "We know that it's a brave thing to do to make a decision that affirms the rights of sex offenders. The ACLU strongly believes that the Constitution applies to everyone, including convicted sex offenders."

    However, McLetchie said the case is not about the rights of sex offenders. "It's about the limits on the power of government," she said.

    One of the plaintiffs in the federal case, a Las Vegas man identified only as "Doe 2," pleaded guilty in 2001 to attempted lewdness with a minor under 14. The felony conviction resulted in five years of probation and lifetime supervision.

    In an interview Wednesday, the man claimed innocence.

    "I was accused of something that I didn't do, because my 'ex' was trying to take custody of my son," he said.

    He said he has had the same construction job for 28 years, has remarried and has three children. Before the new law was passed, he was placed in the Tier 1 category after he was assessed as a low risk for re-offending.

    After the new law was passed, his probation officer told him he would be reclassified as a Tier 3 offender. That meant his neighbors would be notified about his conviction.

    "I feared for my family's well-being," he said.

    He also worried that the new classification would prohibit him from picking up his children at school. Tier 3 offenders may not go within 500 feet of schools or parks. And the man's boss told him he might lose his job.

    When McLetchie told Doe 2 about Mahan's ruling Wednesday, he said, he broke down with joy.

    "I've been carrying this on my shoulders for quite some time," he said.

    Gary Peck, executive director of the ACLU of Nevada, said Mahan's ruling underscores the need for the Legislature "to pay more careful attention" to what the organization's representatives have to say when advocating for constitutionally sound laws.

    "It would have been nice had the AG's office been willing to engage in more constructive dialogue with us throughout the course of this litigation," he said.

    McLetchie said the 2009 Legislature will get "another crack at the apple."

    "In the ACLU's view, the existing laws worked because they really did focus in on public safety and risk to society," she said.

    Attorney Robert Langford, who worked on the case with the ACLU, said Mahan "may have just saved the taxpayers of the state of Nevada several million dollars to institute the bizarre supervision scheme anticipated by the new statutes."

    "That was a fiscal impact not considered by the Legislature and in my opinion that is what has kept most other states from adopting this wickedly Draconian statutory scheme imposed by the federal government," he said.

    Contact reporter Carri Geer Thevenot at cgeer@reviewjournal.com or 702-383-0264.

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    Bud wrote on September 12, 2008 04:35 AM: After reading these comments, I am completely convinced that truly naive people are the only ones paying attention to this. So you run your rapist out of town?.... where do you think he's gonna go? THE NEXT TOWN. Capital punishment needs to be enacted, and 90% of these hysterial SRO laws need to be repealed and never entertained again. And btw, why would you want to pay tax dollars to this guy for 20 years because he'll be on welfare and disability? put him out of everybody's misery. We're so ready to banish these people, but we can't just execute em? Get real.


    Bud wrote on September 12, 2008 04:32 AM: Well, it's about time. But hey, let's disenfranchise everybody that we don't like. That way, only the naive people who think the world is pure and beautiful can go into power, and make more hysteria laws to put U.S. citizens away whenever they feel like it. does this kind of government ring a bell, guys?


    Mamamia wrote on September 11, 2008 10:43 PM: In my humble opinion, there shoud only be two types of Sex offenders: one should be for the truly insane who hurt children. They should undergo intense psychological reprogramming.

    The other is the brutally cowardly rapist. They should be publicly denounced and made to sweep our streets for twenty years, then run out of town. Anything in between should fall within these two catogories, and the cowards who commit these crimes ought to be forced to attend prayer classes and learn forgiveness and mercy.


    Mamamia wrote on September 11, 2008 10:43 PM: In my humble opinion, there shoud only be two types of Sex offenders: one should be for the truly insane who hurt children. They should undergo intense psychological reprogramming.



    The other is the brutally cowardly rapist. They should be publicly denounced and made to sweep our streets for twenty years, then run out of town. Anything in between should fall within these two catogories, and the cowards who commit these crimes ought to be forced to attend prayer classes and learn forgiveness and mercy.


    lryrdr wrote on September 11, 2008 08:38 PM: now we can all thank dina titus, et al, at the next election, for the millions of tax dollars wasted on the attempted unlawful and malicious infliction of punishment.


    Eli wrote on September 11, 2008 04:31 PM: Registration lists are pretty much useless. They don't help cops solve crimes or prevent crimes. They create fear and hysteria when all we see is a name without knowing if the person is actually a risk to the community, and they tend to keep offenders from successfully reintegrating back into society. The UK doesn't maintain any public sex offender registry, and they have a much lower recidivism (repeat crime) rate than any of the US states do. Registries would be fare more effective if they were limited to people likely to re-offend and who are actually dangerous. The 20-year-old with the 15-year-old girlfriend or the guy who took a leak in public isn't a danger to us. If we wanted a useful registry, we'd register repeat offender who commit such crimes as car theft, drug dealing, domestic violence, and burglary.


    Herb wrote on September 11, 2008 04:15 PM: Reality, I would never take the law in my own hands. The government, not private citizens, should execute dangerous criminals.

    "Tier 3" offenders don't deserve execution by any means, however the community should have the right to know who they are so they can protect themselves and their loved ones. Knowledge is power.


    turkeys wrote on September 11, 2008 03:14 PM: Murderers get less time, no supervision and no registry what's up with that-you don't have to be a sex offender these days to go to jail and get on the registry you just have to pi$$ off a girl and have some DA pound you with charges


    warlocks abound wrote on September 11, 2008 03:10 PM: The Word of the Day for September 11, 2008 is:
    arcanum • \ar-KAY-num\ • noun
    *1 : mysterious or specialized knowledge, language, or information accessible or possessed only by the initiate -- usually used in plural
    -Someone finally says No
    If I were them I would check out the lives of the ones trying to get these unlawful laws passed -they probally have more to hide than one knows about


    reality wrote on September 11, 2008 12:42 PM: Bravo and everyone,

    The tiers are currently and has been measured on risk assessment which is more specific to the individual offender rather than a matrix which is more a draconian witch hunt blanketing everyone and placing them at the same risk level as a violent predator even though their offense may be non violent and 'hands off' with no prior history and complete compliance with the terms of the sentence and no further incidents.

    The consequences, risks, and implications are deeper than the Constitutional effects.

    Some redneck like herb can go postal, attack and kill one of these people as it has happened in incidents around the country simply by looking them up on the registry.

    The shift in classification puts the non violent offender in the same classification as the violent predator 'ex post facto'.

    Studies and investigations are uncovering the fact that some of these registered offenders also were railroaded by over zealous prosecutors and that the 'offender' was not even guilty such as is being discovered in some of these dna cases, the 'doe 2' case, and others being investigated.

    Now, let's say anyone convicted of felony or misdemeanor DUI is now deemed a risk to the community because so many more innocent people and families have been victimized and killed by drunk drivers than have been at the hands of sex offenders and should have added consequences.

    It makes more sense, after all drunk drivers are everywhere and many people have been killed including children and whole families because of them, but is it right?

    Maybe we should add speeders and cell phone users to the list as well.

    Then, the sex offender issue would be dwarfed in comparison; it makes more sense, but is it right?


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