Hawai'i 'Megan's Law' struck down by court

By Curtis Lum
Advertiser Staff Writer

The Hawai'i Supreme Court has struck down the state's "Megan's Law" that required convicted sex offenders and predators to notify the public whenever they moved into a community.

In a unanimous ruling released yesterday, the court said the law violated a defendant's right under the state constitution to due process, privacy, prohibition against cruel and unusual punishment and equal protection under the law.

The decision prompted an angry response from city Prosecutor Peter Carlisle, who characterized the state's highest court as a "runaway" from the U.S. Supreme Court that had struck down a law aimed at protecting the public. But Brent White, legal director of the American Civil Liberties Union, said the law unfairly punished sex offenders after they had served their sentences.

The ruling was the result of an appeal by Eto Bani, who had pleaded no contest to fourth-degree sexual assault of a 17-year-old girl. He was sentenced to a year of probation, fined $300 and required to register with the Attorney General's office as a sex offender.

Hawai'i's 1997 version of Megan's law, so called for a 7-year-old New Jersey girl who was raped and killed by a sex offender who had moved into her neighborhood, allowed authorities to make public the offender's address and job locations.

It was not clear how many offenders were registered, but within months of enactment about 550 convicted rapists, child molesters and other sex offenders were listed. The names and addresses were no longer available yesterday on the attorney general's Web site.

Bani's lawyers argued that information on his conviction should not be made public because he did not pose a danger to the public. He said he was denied due process because he was not allowed a hearing to challenge the law.

In the opinion written by Associate Justice Mario Ramil, the high court agreed.

"The state must allow a registered sex offender a meaningful opportunity to argue that he or she does not represent a threat to the community and that public notification is not necessary, or that he or she represents only a limited threat such that limited public notification is appropriate," Ramil wrote.

Carlisle yesterday said he was disappointed with the opinion and that the law was intended to protect children and the public from convicted sex offenders.

"The Legislature weighed in, in favor of public safety, and that safety was essentially given to the public by their ability to know who was a sex offender and where they lived. That safety is now no longer existent," Carlisle said.

He criticized the justices, saying, "This is one more piece of evidence that Hawai'i may be suffering from a runaway state Supreme Court." Carlisle said the court often refuses to follow the dictates of the U.S. Supreme Court and "goes out of its way to give defendants more rights than are required under the federal constitution."

The state court has the latitude to provide defendants with protections under the state constitution that are not provided by federal courts' interpretation of the U. S. Constitution.

Carlisle also said the Hawai'i court had failed to provide guidelines on what procedures should be written into the law to make it constitutional. But he said any law that does not require public notification will be easily challenged.

"It takes certainty out of the rule, and what it does is it imposes ad hoc decisions depending on whatever the nature and attitudes of the particular judge are," Carlisle said.

The court's ruling was applauded by the American Civil Liberties Union, which was preparing a challenge to the law and publication of sex offender information on the Internet.

White said convicted sex offenders have a constitutional right to show that they do not present a danger to society.

"Certainly you can't have a law that labels people with a scarlet letter as a sex offender without giving them a fair opportunity to be heard and show that they should not be on the register," White said.

He said the notification law did not have a statute of limitations, meaning someone convicted 40 years ago still would be required to register.

"The U.S. Constitution provides that government can't increase the punishment for a crime you've already committed, and they can't make something a crime that wasn't a crime when you did it," he said.

Carlisle said he will go to the Legislature next year to rewrite the law.