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Megan's Law debated before high court

Thursday, September 17, 1998

By Jon Schmitz, Post-Gazette Staff Writer

Opponents of Pennsylvania's "Megan's Law," a 2 1/2-year-old statute that was intended to crack down on violent sex offenders, asked the state Supreme Court yesterday to declare the law unconstitutional.

Supporters of the law said it was a rational and constitutional way to protect citizens from "sexually violent predators."

The Supreme Court heard arguments in Pittsburgh for appeals involving six Megan's Law-related cases from throughout the state. The court usually takes several weeks or longer to issue a ruling.

Several lower courts have ruled that portions of the law, which took effect in April 1996, were unconstitutional. But a state appeals court last year upheld a section requiring certain sex offenders to register their whereabouts with law enforcement authorities.

Every state has enacted some version of "Megan's Law," named for a 7-year-old New Jersey girl who was raped and murdered in 1994 by a paroled sex offender who had moved into her neighborhood. The laws generally provide for some type of public notification of the whereabouts of convicted sex offenders after their release from prison.

Civil libertarians and other critics have called the requirement a "badge of infamy" that is attached to offenders for life.

Erie County District Attorney Joseph P. Conti, arguing in favor of the law yesterday, said citizens needed special protection from sex offenders because studies had shown that they were far more likely than other classes of offenders to repeat their crimes.

But opponents attacked a provision in Pennsylvania's law that presumes certain types of convicted sex offenders are "sexually violent predators" unless they are able to prove otherwise. Such a designation subjects an offender to the most stringent notification requirements and, in some cases, to harsher sentences.

Under the law, an individual found guilty of kidnapping, rape, involuntary deviate sexual intercourse, aggravated indecent assault, or some prostitution and obscenity offenses is referred to a state board before sentencing. The board makes a recommendation to the trial judge about whether the offender is a "sexually violent predator." The trial judge holds a hearing, at which the burden rests on the offender to prove by "clear and convincing evidence" that the designation is unjustified.

Those who are so designated face a possible maximum sentence of life in prison, a mandatory life term if convicted of another sex crime and stringent registration requirements if and when they get out of prison.

Karl Baker, a Philadelphia public defender who has spearheaded statewide challenges to the law, said it unconstitutionally shifted the burden of proof from prosecutors to the accused, subjected offenders to multiple trials and punishments and was unconstitutionally vague.

Some lower court judges have agreed. In one such case, Erie County Judge Ernest J. DeSantis Jr. ruled in September that because the label "sexually violent predator" carried possible additional punishment, prosecutors should bear the burden of proving that the designation is justified.

"It would be quite easy for a community to 'let down' its constitutional guard in cases such as this that involve acts which are so heinous and repugnant," DeSantis wrote.

Conti told the court the "presumption of innocence" vanished once an individual was convicted of a sex offense, and that it was both lawful and sensible to shift the burden of proof to the offender.

That prompted Justice Stephen A. Zappala to ask if the Legislature could require every convicted murderer to face the death penalty unless he could prove that a lesser sentence was justified.

Justice Sandra Schultz Newman wondered aloud why convicted killers were not required to register with authorities after their release from jail.

Conti replied that sex offenders, because of their penchant for repeated offenses, posed "unique and serious problems" that justify special treatment under the law.

Another issue before the high court is whether the registration requirements in Megan's Law can be imposed on offenders whose crimes occurred before the law was enacted.

A Superior Court panel ruled last year that the notification requirement was not "punishment" and thus could be applied retroactively.

Public defender Jeanette Dickerson of Montgomery County asked the Supreme Court to reverse that ruling, saying the registration requirement was an "additional penalty enacted after the commission of a crime," and therefore was an unconstitutional "ex post facto" law.

Her client, Dennis Gaffney, was convicted of sexual assault on a 9-year-old girl four months before Megan's Law took effect. He was sentenced to six to 30 years in jail. If he gets out, he must register his whereabouts with state police, who will disseminate the information to local law enforcement officials.

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