Posted on: Monday, November 26, 2001

Editorial
Court offers little help on 'Megan's Law'

The issue of how to protect the public from being victimized by sex offenders has long posed a legal conundrum in America.

Judging by the laws on the books in 50 states, Americans overwhelmingly want to know if a sexually violent predator lives or works in their neighborhood.

That's why they passed various versions of Megan's Law, which requires that sexual offenders released from correctional facilities notify communities in which they live of their former status.

The 1995 New Jersey statute was named after a 7-year-old girl who was raped and murdered by a convicted sex offender who lived near her home.

But the law also raises the question of whether it's constitutional to hang a "scarlet letter" on sex offenders who have served their time and paid their debt to society.

The Hawai'i Supreme Court's answer to the dilemma, however, raises even more questions.

Declaring it unconstitutional, the high court last week struck down Hawai'i's sex offender registration law, citing an "absence of any procedural safeguards in the public notification."

In its decision, the court said "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."

That means a hearing.

And so, until the Legislature comes up with a hearing process where sex offenders will be allowed to argue that they are not a danger to the community, state officials will be barred from notifying the public of the whereabouts of sex offenders.

That irritates Honolulu Prosecuting Attorney Peter Carlisle, who complains that, once again, the Hawai'i Supreme Court has punted a thorny issue back to the Legislature without offering sufficient clues as to what would satisfy it.

Carlisle correctly points out that the court has failed to answer these questions:

• When would such a hearing be held? At sentencing? After the offender's release from prison?

• What is the burden of proof and who bears the burden of proof?

• What kind of testimony or evidence is admissible?

The state high court has raised important issues about the constitutionality of punishment that continues after an offender has paid his debt to society. Yet rehabilitation of sexual offenders is notoriously undependable.

Society needs to be fair to its offenders, but it also needs to protect itself from demonstrated sexual predators. The court has dumped this conundrum into the laps of state lawmakers with very little guidance.