Megan's Amendment needed

By Mark Bennett

The Hawai'i Supreme Court just struck down as unconstitutional Hawai'i's "Megan's Law," a law that required registration of offenders convicted of sexually violent offenses or offenses against children.

The law was named after 7-year-old Megan Kanka, a New Jersey girl who was sexually assaulted and murdered in 1994 by a convicted pedophile. Megan's parents led a crusade to require the registration of sex offenders, hoping that registration laws would prevent murders and assaults by giving members of the community notice of convicted offenders living among them.

Because the passage of Megan's laws made so much sense by providing a measure of protection to the community, Congress required states to pass such laws or face the loss of federal funds.

Hawai'i's Supreme Court struck down our Megan's Law because, the court said, it violated the due process rights (under our state Constitution) of those convicted of sexually violent offenses or offenses against children.

While the court claimed it appropriately balanced the interests of convicted offenders against what our Legislature found to be the state's compelling interest in protecting its citizens, especially children, from sexual predators, I believe the court struck this balance in a completely inappropriate way that put the interests of those convicted of crimes far above the interests of those who have been or might become victims of crimes.

As a California court recently noted, "Sex offender registration laws (have become) a widely accepted means of aiding law-enforcement authorities in preventing and investigating sex crimes, and have been found by courts addressing the issue to have a legitimate regulatory purpose."

The court went to great lengths to point out that it, and not the Legislature, is the arbiter of what is and is not lawful under Hawai'i's Constitution. In this case, however, the court is wrong — it does not have the final word. While the court did have the power to overturn Megan's Law, it would have no power to overturn an amendment to Hawai'i's Constitution — a "Megan's Amendment."

The Legislature is free to, and in my view has a duty to, put on the 2002 ballot a proposed constitutional amendment providing that a law requiring mandatory registration of all persons convicted of sexually violent offenses or offenses against children would not violate any other provision of Hawai'i's Constitution. Such an amendment would remove from the Hawai'i Supreme Court the power to overturn a new Megan's law pursuant to Hawai'i's Constitution and would effectively overrule the court's recent decision.

Were the court to even attempt to overturn such a law pursuant to the U.S. Constitution, such a decision would most certainly be overturned by the U.S. Supreme Court. Hawai'i's voters, if given the chance, would pass a Megan's Amendment by an overwhelming majority.

I believe we as citizens should urge our legislators to pass a Megan's Amendment. And, it should be an issue that should not be politicized. Democrats as well as Republicans should get behind the effort, as should all of our current candidates for governor.

Such an amendment would have at least three salutary purposes:

• It would send a message to the victims and potential victims of crime that we as a society care about what happens to them.
• It would send a message to sexual predators: Do the crime, and you will continue to pay for your act for a long time.
• It would send a message to the Hawai'i Supreme Court — in our democracy, it is the people and their elected representatives who ultimately decide the content of our state's Constitution.

Mark Bennett, formerly an assistant U.S. attorney in the District of Hawai'i, is a partner with the law firm of McCorriston Miller Mukai MacKinnon.