Lower-risk offenders: New law unfair
By CORY MATTESON / Lincoln Journal Star | Posted: Saturday, January 2, 2010 9:45 pm
Some Nebraska residents found guilty of committing lower-level sex crimes have joined legal efforts to suspend or change parts of new sex offender laws that were set to take effect Friday.
One man convicted of sexually assaulting his 15-year-old girlfriend when he was 19 successfully challenged his sex offender registry classification, getting it dropped to Level 2 and removing his name from public view after a concrete chunk was thrown at his family's home.
A Lancaster County woman convicted of third-degree sexual assault said she would not have pleaded guilty to the crime had she known new laws could allow authorities to search her work computer and make her subject to community notification for 15 years.
"These are not the guys you worry about," Lincoln attorney James Beckman said.
While Nebraska authorities, including Attorney General Jon Bruning, have said the laws are in place to provide added protection for Nebraska's families and children, the civil suits focus on the impact the laws will have on the offenders.
The two people cited above were part of a lawsuit filed by Omaha attorney Stu Dornan on behalf of 20 anonymous convicted sex offenders, as well as their families and employers.
All said in recent court filings that their lives would change once their names became public to all Nebraskans, which was slated to happen on Friday.
A Sarpy County District Court judge on Thursday granted a temporary injunction, halting the publication of the names of the low-risk convicted sex offenders and scheduling a 10 a.m. Jan. 11 hearing on the matter.
That action followed rulings by U.S. District Judge Richard Kopf last week on two federal suits. Kopf upheld most of Nebraska's new sex offender regulations, including publication of information regarding all the states' sex offenders, not just the high-risk ones.
He said most changes to Nebraska law are in line with the federal Sex Offender Registration and Notification Act (SORNA). But he temporarily halted enforcement of two add-ons to the guidelines by Nebraska legislators - laws that would have allowed authorities to monitor convicted sex offenders' computer usage and banned offenders from social networking Web sites such as MySpace and Facebook.
In his ruling, Kopf gave a negative personal opinion of the legislation.
"I am not a fan of laws like this one," Kopf wrote. "If I had my druthers, I would enjoin the entire law and not just the portions that are probably unconstitutional.
"I am pretty sure that this enactment will divert attention and money from policing the monsters (and God knows there are plenty of monsters out there). I also worry that this law will incite a virulent form of vigilantism against the hapless.
"But, my likes and dislikes don't matter," he wrote.
Beckman, who filed one of the two federal cases, agreed with Kopf.
"I get that there are bad people out there," he said. "And these are not those people."
He said he also understood why Kopf ruled as he did at the federal level. He and other attorneys are now focusing their attention on state law. State judges in Alaska, Maine and Indiana have ruled that parts of the federal Adam Walsh Act, the guiding force driving many changes in sex offender law, are unconstitutional, Beckman said.
"There's issues of the interpretation of the state constitution and interpretation of state law as it relates to plea bargains and search and seizure," Beckman said.
He said some of his clients agreed to plea agreements years ago to get on with their lives. The John Doe he represented in his federal filing pleaded guilty to a non-aggravated felony offense almost 10 years ago.
Beckman said in the lawsuit that the man completed probation, received counseling and has led a productive life since the plea agreement. He said the man would have fought the charges in court had he known that SORNA would require him to register for 25 years and have his name, photo and place of employment displayed online.
Beckman filed a civil case Thursday in Lancaster County District Court on behalf of two John Does, including one man who had reached a plea agreement with state prosecutors years ago.
Like the Sarpy County District Court case, it seeks an injunction against the Nebraska State Patrol and several state and local law enforcement officials, claiming that the new legislation "represents a significant departure from the previous sex offender registry, infringing on core Constitutional rights guaranteed by the Nebraska Constitution." A hearing on the matter has been tentatively set for Thursday, he said.
The lawsuit challenges the constitutionality of the laws, as well as the feasibility of some of the requirements, such as the monitoring of "remote communication devices." Beckman wrote that the term could presumably cover everything from cell phones to "bullhorns, walkie talkies, tin cans connected via string, etc."
The lawsuit also asks the court to consider the damage that a published name would do to a low-risk offender.
"Each John Doe will forever be affected by public notification via the State Patrol's (Web site)," Beckman wrote in the lawsuit. "Once a registrant is listed, even accidentally or briefly, that person will forever be memorialized as a sex offender through Web sites such as familywatchdog.us and neighborhoodscan.com."
He said in the lawsuit that the 1,600-plus names of lower-level sex offenders that were to be published will result "in a dilution of information that provides little to no real useful or actionable information to the public."
Beckman said judges have written in some probation and sentencing orders that essentially the guilty party did something stupid, but showed no risk to reoffend.
Those are the people he and other attorneys are trying to protect from added public scrutiny, he said.
One such John Doe, according to the other federal lawsuit ruled on last week by Kopf, was briefly listed on the Nebraska State Patrol's sex offender registry Web site by accident.
During that time, "he received disquieting mail and became ostracized in his community," the lawsuit stated.
"He is terrified what further public notification will bring."
His name and many others remained veiled this weekend, due to the Sarpy County District judge's temporary injunction.
Beckman said he hoped to prevent that man's name, as well as those of his clients, from ever appearing on the registry, because he knows what will happen if they are ever listed.
"Even if six months from now we get this overturned, everyone knows," he said.
Reach Cory Matteson at 473-7438 or firstname.lastname@example.org. Information from the Associated Press was used in this report.
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