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Possible Registry Loophole Disputed
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By Peter Hirschfeld Vermont Press Bureau - Published: August 13, 2009
MONTPELIER – The first constitutional challenge to Vermont's expanded Internet sex-offender registry came to an abrupt end Wednesday. But legal issues that spawned the case could well re-enter the courts before the statute takes effect in October.
After the highly publicized rape and murder of a 12-year-old Braintree girl last summer, the Legislature enacted two of the most wide-ranging sex-crimes bills in state history. The provisions included a law that would quadruple the number of names on the state's publicly accessible Internet sex-offender registry. The law, which takes effect Oct. 1, will add the names, photos and, eventually, addresses, of some 1,200 offenders whose crimes had not previously warranted placement on the public registry.
"This is something the people of Vermont said they wanted," said Sen. Dick Sears, a Bennington County Democrat and chairman of the Senate Judiciary Committee.
But in a case filed earlier this week in Washington County Superior Court, two Caledonia County men said the law violated their constitutional rights by imposing new sanctions on crimes for which they'd already served their court-ordered sentences.
The men, identified in court papers only as "John Doe" and "John Roe," committed their offenses in New Hampshire and Maine, respectively.
"These two gentlemen entered into plea agreements and pleaded guilty to sex-related offenses," said David Sleigh, the St. Johnsbury lawyer representing the men. "… They were given plea agreements with various provisions, and not included in those plea agreements was any agreement to post their names and addresses on the Internet. Adding that effectively adds punishment ex post facto and violates the terms of their contract they made with the state."
In fact, legislators assumed when they passed the law that it would come under legal scrutiny. But the superior court case won't serve as the constitutional testing ground: a technical error in the new statute – exposed by Sleigh's case – inadvertently excluded anyone who committed their crimes outside of Vermont from being subject to the expanded registry.
Sears said Wednesday that the error will be rectified in January. Sleigh said his clients will resume their challenge then, if necessary.
Sears said he's confident the expanded registry will withstand any constitutional challenges. Though both the U.S. and Vermont constitutions protect citizens from the retroactive application of new punishments for old crimes, the U.S. Supreme Court has previously ruled that placement on an Internet offender registry is not "punishment."
"We knew when we passed this law that we were probably going to get some court challenges," Sears said. "But given the Supreme Court decision, we're confident we're on safe ground here."
Allen Gilbert, executive director of the Vermont chapter of the American Civil Liberties Union, said the social consequences of being on a publicly accessible list of sex offenders is clearly punitive.
"Our general concern is that all Vermonters should worry when government reaches back and changes the rules," Gilbert said. "It's not right when the government says it will treat you one way and then does something different."
Sleigh argued that his clients would be subject to "stigma, opprobrium and ostracism" that could affect their personal lives and employment. Both men have families and jobs, he said. The prior U.S. Supreme Court decision upholding sex-offender registries, according to Sleigh, came 15 years ago and is no longer relevant to the kind of statutes being proposed in Vermont and elsewhere.
"The (Supreme Court) reacted to what I would call first-generation registry statutes," Sleigh said. "… Our arguments were going to be that statutes that the U.S. Supreme Court held were not punishment are substantively different from statutes like" the one passed by Vermont lawmakers earlier this year.
Sleigh said the technical error in the new statute underscores the shoddiness of the new law. An overwhelming majority of legislators approved the statute after more than 50,000 Vermonters signed petitions seeking the expanded registry.
"This is a classic haste-makes-waste example of legislative behavior," Sleigh said. "The Legislature responded to hue and cry of 54,000 petition signers and felt they had to do something, so they rushed through this enhanced registry statute and blew it when it came to people with out-of-state convictions."
Sears attributed the error to 11th-hour changes that came as his conference committee was already overwhelmed by heated budget negotiations.
Both Sleigh and Gilbert said the expanded registry will do nothing to protect Vermonters from sex crimes. Sleigh said there's no empirical evidence linking public registries to lower rates of sex crimes. Gilbert said Vermont's own sex-offender study committee concluded in 2006 that "there's no evidence these things actually work."
Additional constitutional challenges could make their way into Vermont courts before the law takes effect in October; many of the potential plaintiffs still are trying to avoid placement on the expanded registry by exhausting a hearing process outlined in the statute. Should those offenders fail to convince the Department of Corrections they don't belong on the registry, some could come forward to challenge the law in court.
Lawmakers intended to prevent offenders with out-of-state convictions from being able to petition for removal from the registry. Due to the technical error however, the language actually excluded them from being subject to any of the provisions under the new registry law.
The existing public registry, which contains about 400 names, includes people convicted only of aggravated sexual assault, lewd and lascivious behavior with a child, kidnapping and sexual assault of a child, or someone who is designated as "high risk" by the Department of Corrections. The new registry adds about 20 additional crimes to that list.