December, 1999

Sex offenders are required to register with their local authorities with their names, addresses, and places of employment after they have finished their sentences. That is a portion of the punishment they face upon their release from prison. Due to Section 170101(d) of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14071(d)), which is more popularly known by its short title “Megan’s Law,” they are required to register more frequently and with greater consequences to their daily lives and social interactions. The greater security that this law promises to provide comes at the expense of the rights of the offenders. They may have committed one or many heinous crimes, but their punishment should be during their imprisonment, not upon their release.

On Friday, July 29, 1994 at approximately 8:00 p.m., seven year old Megan Kanka was reported missing from her Hamilton Township home. At approximately 7:00 p.m. the next evening her body was discovered in a local park near a portable toilet in a weeded area about three miles from her home. The autopsy results showed that she had died of acute asphyxia due to mechanical strangulation.

Jesse Timmendequas, a twice convicted sex offender lived directly across the street from the Kankas, and neighbors reported seeing Megan in his driveway earlier on the day that she was reported missing. He lived in a house with a convicted child molester and another sex offender. Timmendequas lured Megan into his house on Friday by offering to show her a puppy he had recently purchased. He pulled the girl into his room, strangled her with a belt and then sexually assaulted her. He tried to cover up his crime by wrapping a plastic bag over the girl’s head to keep blood off of his carpet, sneaking her body out of the house in a toy box, and cutting her shorts into shreds. Once Timmendequas realized that the police were checking the neighborhood with dogs, he washed down his steps, the toy box, and his truck with ammonia, and he even offered to help the family by distributing fliers intended to help find Megan.

He was apprehended and questioned on July 31, 1994. The next day he confessed to the charges and signed a statement admitting to the crime. Timmendequas had been convicted twice previously on sexual assault charges and had spent six years at the Adult Diagnostic and Treatment Center, which is a prison for sex offenders in Avenel, New Jersey.[1]

Timmendequas was found guilty on all counts and sentenced to death. Fairly recently his lawyers asked the New Jersey Supreme Court to overturn his murder conviction and death sentence on the grounds that there was pretrial negative publicity, improper prosecution statements, and the fact that the jury did not receive a proper report on the mitigating circumstances of Timmendequas’ background. The previous decision was upheld on the basis that the defendant had been convicted on overwhelming evidence and in a fair trial, and that the trial judge had been scrupulous in ensuring that fair trial.[2]

Megan’s mother, Maureen Kanka, pushed to have a law passed in order to protect other children from being forced to experience the same misfortune as her daughter. The law is basically a release of information. The information is collected under a state registration program of sex offenders and it may be disclosed for any purpose permitted under the laws of the state. The designated state law enforcement agency and any local law enforcement agency authorized by the state can release relevant information that is necessary to protect the public concerning a specific person required to register, except the identity of the victim of an offense. The classification of these sex offenders is separated into three tiers. The first tier being the least serious offense and the third tier being the most serious.

Anyone convicted as a sex offender must register with the state legislature, to register the offender must go to the police department in the city of residence and register. Failure to register is a crime in itself. Now in accordance with the new law, offenders must register with authorities every ninety days rather than annually as it had been in the past. This law also lengthens prison terms with a required life imprisonment without parole sentence for a second offense, and makes the murder of a child a factor for the death penalty. It also gives the state more leeway in getting sex offenders confined to psychiatric hospitals.[3]

The promise of this law was that children would be safer in general. The law was found to be constitutional, clearing the way for police to notify neighbors if a potentially dangerous sex offender lives or works in their midst. The law provides added security for children and their families, but it takes away from the liberty of the offender who has already served his time. The purpose is that the registration and carefully tailored notification can enable law enforcement and those most likely to encounter a sex offender to be aware of a potential danger in their community. It is argued that this idea takes on the same form as parole. That it is a necessary measure taken to ensure the safety of a community, as a check on a convicted criminal so that they cannot hurt another person as they had done in the past.

In this law dubbed “Megan’s Law,” an offender must be deemed as a danger by clear and convincing evidence in order to have the community notified. Tier I offender’s names are in the directory, but no further action is taken. Tier II offenders require the notification of schools, day cares, and women’s centers. Tier III offenders require a more intensive notification, police may even go door to door to inform neighbors of the offender’s prior history. After an offender is classified, they are permitted to appeal their distinction, but it is up to themselves to prove that they do not belong in a particular tier.

Authorities believe that the notification of these offenders in neighborhoods adds to the security of the community. When there is a preconceived notion of danger people tend to be more cautious. The mere knowledge that a sex offender is living nearby can allow a parent to provide ample supervision for their children and prevent a misfortunate situation that might have otherwise occurred. This protection can spare a child from a horrific experience that can be prevented by the successful use of this law. The Megan Kanka murder took place in a typical suburban neighborhood where many people have reason to believe their children are safe. That evokes fear into the heart of any parent and therefore they attempt to enact legislation to protect their loved ones. They use the reasoning that this crime proves that something else is needed to keep their children from harm and that this legislation can provide the extra protection necessary to allow families to feel safe in their own homes. While these people think they are making their neighborhoods better places they are neglecting the fact that they are giving up precious rights and giving their liberty to the government in exchange for security.

Another argument for the positive aspects of this law is that its policy is similar to that of the three strikes legislation that has also been found to be constitutional. In three strikes cases an offender is sentenced to a more severe sentence for each additional offense. It is not considered double jeopardy, they are not being punished again for their previous crimes, rather they are being issued a stiffer sentence because they have been convicted previously and it is a protection of society. The same basic standard is seen by the use of Megan’s Law. The sex offenders are not being punished again, it is just a stiffer sentence due to the nature of their crime, and it is a protection of society as a whole. Again, the security of some should not come at the high price of the freedom of others.

Megan’s Law gives law enforcement officers more options to notify the public about registered serious sex offenders that were not available prior to the enactment of the law. They include: during the course of their patrol, an officer may notify an individual that may be at risk if the individual is in proximity to a registered serious sex offender; local law enforcement may also warn residents, schools, churches, or any other community members at risk that a registered serious sex offender resides nearby. Typically this is accomplished by officers handing out fliers door to door with information about the sex offender; finally, when it comes to high-risk offenders, local law enforcement may advertise to the community the identity and whereabouts of a high-risk registered sex offender.[4]

The directory of sex offenders includes their names, photographs, physical descriptions, and histories of their sex-related crimes. It does not include their addresses, therefore the offender is technically protected as well as the community is by being notified. For decades sex offenders have been required to register annually with their local law enforcement agency, the enactment of Megan’s Law just makes that directory open to the public in order to protect children and to prevent future sex crimes. What is overlooked is the crime of denying an American citizen of the rights he deserves and is entitled to in the Bill of Rights. People tend to look past the fact that some are being robbed of their liberty because they feel they are receiving a greater gift in security. In reality they are sacrificing their own responsibility in return for safety. Liberty and responsibility are positively correlated and when one decreases the other will always decrease. As people begin to hand over a little liberty then lose a little responsibility and it becomes a slippery slope as the government gains more and more control over American citizens’ rights and freedoms.

Megan’s Law makes the daily life of those who have been convicted of a sex crime difficult. There is no distinction between violent sexual acts such as rape and consensual statutory rape. Also there are no provisions for juveniles. A teenager could be stigmatized for life and it destroys the principles of the existing juvenile system. Not every person convicted of a sex crime will become a repeat offender, and for those people their lives are ruined. The law makes it harder for them to find a place to live or to find a job. Two examples of such cases are that one offender spent an extra eight months in prison because he was unable to find a place to live, and another offender was chased out of six Texas towns and over two hundred halfway houses because of his criminal history. Once these people have been stigmatized as a sex offender others do not want to even take the risk of having them around. The release of the registration information is a form of excessive punishment. Each offender has served their time in prison and should not be subjected to the added cruel and unusual punishment of a lifetime of ostracism.

While many may believe that this law is a solution to sexual crimes, they only look at the principle of the law, they tend to overlook its practicality and applications. For example, only sixteen offenders registered in the District of Columbia in 1998. This may be due to the fact that they have to physically register in person rather than mail in their information. Another problem is the basic one of the lack of reports on attacks. Eighty percent of all victims know their attackers and fear keeps them from reporting the incidents.

Also, the release of information about sex offenders induces rage in local people. Numerous vigilante acts are committed against these offenders. While their addresses are not published, their name, photograph, and description are. Any reasonable person would be able to locate an offender if they were determined to persecute them. In Washington State a convicted offender had his house burned down in response to his past crimes. Also, in Phillipsburg, New Jersey, two men broke into the wrong home looking for a sexual offender and severely beat an innocent man. Megan’s Law not only takes away a sex offender’s liberties, but it also puts them in physical danger.

Offenders were always required to register with their local authorities; this new law mainly facilitates the release of that information. There are other methods that can be implemented to help preserve the security of the neighborhoods without withholding the rights of citizens. States could increase the length of the prison terms given to sex offenders. The average sentence for sex offenders now is less than eight years. If the states feel that their offenses are serious enough to keep them under control after they have served their time and are released from prison, then maybe they should consider that the offenses are serious enough for a more lengthy prison term.

Another method of added supervision over convicted sex offenders would be lifetime probation. It would be a way for authorities to keep realistic tabs on previous offenders and it could be implemented without overextending their control over the offender’s rights. It would not interfere with their social interactions or daily life as the Megan’s Law notifications do. Some examples that could be beneficial are group or individual therapy sessions, intensive surveillance by probation officers, or a prerequisite that all offenders must stay away from anyone under the age of eighteen.

Megan’s Law has opened the door for various other types of solutions for continued punishment of sex offenders. There are new sexual predator laws that allow for a sex offender to be transferred to mental hospitals after they have completed their sentences and to be held there indefinitely to “treat” them. In the Supreme Court case of Kansas v. Leroy Hendricks (No. 95-1649) the Sexually Violent Predator Act was declared constitutional. The Court ruled that states can imprison sex offenders in mental institutions even though they have already served their prison time if they have been determined to be “mentally abnormal,” not even the higher standard of “mentally ill.”[5] This act provides for commitment, care, and treatment of those offenders deemed to be mentally abnormal and a societal danger. The Supreme Court decided that it was not a violation of due process. One catch in this theory is that it is uncommon for a person charged with a sexual crime to plead insanity because most paraphilias alone are not sufficient evidence to compromise criminal intent,[6] yet offenders can be sent to mental hospitals after serving prison time to help to treat them for their “illness.”

While sexual criminals tend to have a higher recidivism rate than most other categories of criminals it really does not distinguish them from others who digress from the law. They are criminals just as someone who commits a murder is a criminal. Each crime has a defined sentence, if it is decided that the sentence is not long enough then there should be a consideration of lengthening the sentence rather than subjecting the offender to excessive punishment after their release from prison.

Sexually violent crimes are socially abhorred and thus society attempts to thrust an equally abhorrent punishment on those who commit those acts. Some have even suggested a chemical castration of repeat sexual offenders. Such heinous criminal acts tug at the heartstrings of most people and they feel that those who commit sex crimes should be severely punished. While they do deserve punishment, it is often taken past logical boundaries due to the emotional aspect of the issue. Indefinite incarceration, mental commitment, castration, and social interference are not the solutions to the problem. It may seem to help by keeping these dangerous offenders off of the street, but the underlying issue of freedom still emerges. These people may have been imprisoned, but upon their release they still retain their rights ensured by the Bill of Rights. Those rights protect them from excessive, or cruel and unusual punishment, double jeopardy, and ensure due process. Sacrificing those rights to the state may seem like a logical way to protect society, but it would not end there. More and more society would rely on the government for security and people would begin to have less and less responsibility. For some peace of mind is of greater value than freedom, but that is not the principle this country was founded on. Freedom is an essential part of what the United States of America is about and to voluntarily give that liberty up would be a mistake that most would not understand until it was too late.

[1] Associated Press. New York Times. August 2, 1994.